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NOT REPORTABLE

DELIVERED: 13 JUNE 2008

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 36796/07

In the matter between:

VISHNU MUNILALL AND ASSOCIATES 1^st Applicant

(OFFER 1)

VISHNU MUNILALL AND ASSOCIATES 2^nd Applicant

(OFFER 2)

and

DIRECTOR GENERAL: DEPARTMENT OF JUSTICE 1^st Respondent

AND CONSTITUTIONAL DEVELOPMENT

DIRECTOR GENERAL: NATIONALTREASURY 2^nd Respondent

KRINO TRANSCRIPTIONS 3^rd Respondent

VERITAS LEGAL CONSORTIUM 4^th Respondent

ELT PRO TRANSCRIPTION 5^th Respondent

SNELLER DVP CONSORTIUM 6^th Respondent

SET LK CONSORTIUM 7^th Respondent

TRANSCRIPTION AFRICA CONSORTIUM 8^th Respondent

JUDGMENT

HARTZENBERG J

[1] The applicants seek the review and setting aside of an unfavourable, from their point of view, decision. The applicants tendered, as one of 43 tenderers for the provision of services in respect of transcription of court proceedings in all nine provinces of the Republic for the Department of Justice and Constitutional Development. Invitations to tender were invited under bid number RFB2006 1B, published on 13 January 2006. The applicants tendered for 8 of the 9 provinces. Their tender for Mpumulanga was accepted. They were informed thereof on 10 May 2006. The service contracts, for a period of 3 years, commenced on 1 June 2006. They maintain that their other 7 tenders should also have been accepted and that the contracts should not have been awarded to 7 other tenderers. The other 7 successful tenderers have been joined as respondents 3 to 8. The first two respondents are respectively, the Director General of the Department of Justice and Constitutional Development and the Director General of the National Treasury. Respondents 3 to 8 did not file opposing affidavits.

[2] Before trying to articulate my understanding of the applicants’ complaints it is necessary to indicate that the applicants did not invoke the provisions of Rule 53 and chose to bring their application in terms of Rule 6 of the Rules of Court. They did not, as they would have been entitled to do had they invoked Rule 53, ask for the first respondent to lodge a record of the tender process with the Registrar. Their complaints are in the result quite different from those in other review applications. Usually an applicant compares his tender to that of the successful tenderer and maintains that his tender was superior to that of the successful tenderer and that he should have been awarded the tender and not the other tenderer. That is not how the applicants presented their application.

[3] The deponent to the founding affidavits has explained that he got suspicious about the way in which the tenders were awarded after a co-tenderer informed him that there were irregularities in respect of the award of the tender. He then started with investigations. He firstly exhausted his internal remedies which inter alia was a process of mediation and by January 2007 asked for reasons for the administrative decision. The reasons were furnished on 7 May 2007. The application was launched on 7 August 2007. As has already been stated, the attack against the tender award is rather unusual. It boils down thereto that the applicants convey a general suspicion that the first respondent could not have followed a proper procedure of comparing the tenders and consequently did not act fairly when it awarded the tenders. The argument proceeds that the first respondent, who gave a description of how the tenders were awarded and an explanation that a policy to spread the contracts so that tenderers would get contracts for one province only was adhered to, failed to put the actual score sheets before the court. The court is therefore not in a position to check for itself that the tenders were awarded fairly and the inference must be drawn that the awards were tainted by irregularity.

[4] On behalf of the first two respondents it is contended that the applications, in which reliance is placed upon the provisions of the Promotion of Administrative Justice Act (PAJA), were brought out of time and that in any event no case has been made out that the awards stand to be reviewed and set aside. It was in particular pointed out that the application was only launched 15 months after the awards had been made and that on the day when the matter was argued, 3 June 2008, more than two years of the three year contracts had already lapsed. The applicants argued that PAJA enjoins them to exhaust their internal remedies, that they did so and that when they asked for reasons, some 8 months after the tender awards, they were still within the time limits provided for in PAJA. The argument continues that when the first respondent furnished reasons during May 2007 it waived reliance on the time periods provided for in PAJA and that accordingly when the application was launched in August 2007 it was still within the 180 day period provided for in PAJA.

[5] A major problem for the applicants is that they are wrong in their contention that there were internal remedies that had to be exhausted. An example of an internal remedy is a right of appeal against the decision of the decision maker to an official of higher rank or to a Minister or other executive official. In this case there is no provision for the reversal of the awards by a higher ranking official or another conceivable way in which the applicants could obtain a setting aside of the awards other than by a court order. The period to ask for reasons, 90 days, commenced when they became aware of the awards, i.e. 10 May 2006. It expired during the first half of August 2006 and could certainly not have expired later than 29 August 2006 as the applicants’ contract in Mpumalanga commenced already on 1 June 2006. The fact that the first respondent supplied them with reasons which were asked for some two months after the expiry of the 180 day period can in my view not interrupt or in some other way cure the fact that the time period had elapsed.

[6] The court has, on the one hand, a discretion, in a suitable case, to extend the 180 day period, but on the other hand the court must look closely at the circumstances of the case to decide whether it is just and equitable and practical to set aside an award. Oudekraal Estates (Pty) Ltd v City of Cape Town and Others, 2004 (6) SA 222 (SCA) and Chairperson: Standing Tender Committee and others v JFE Sapela Electronics (Pty) Ltd and others, 2005 (4) All SA L R 487 (SCA). Where more than two thirds of the contract period has expired and where in my view not a single irregularity has been demonstrated it would be preposterous to even contemplate to embark upon an investigation for which no proper basis has been laid.

The application is dismissed with costs.

W J HARTZENBERG

JUDGE OF THE HIGH COURT

HEARD ON : 3 June 2008

ON BEHALF OF THE APPLICANTS

Counsel : R B G Choudree, SC

M Manikam

Instructed by : SINGH & GHARBAHARAN ATTORNEYS

C/O PILLAY SHABANGU INC

ON BEHALF OF THE RESPONDENTS

Counsel : S K Hassim, SC

Instructed by : THE STATE ATTORNEY

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