IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:

 

CIV/APN/239/11

 

 

MONAHALI CONSTRUCTION                                          APPLICANT

 

        AND

 

MINISTRY OF EDUCATION & TRAINING                      1^ST RESPONDENT

ATTORNEY GENERAL                                                         2^ND RESPONDENT

P.L. LEPOTA AND SONS                                                    3^RD RESPONDENT

 

 

JUDGMENT

 

DELIVERED  BY THE  HONOURABLE  MRS  JUSTICE  K.J. GUNI

ON THE 8^TH DAY  OF  JUNE  2011

 

 

Sometime in March 2010, the Ministry of EDUCATION AND TRAINING invited tenders for the construction of additional infrastructure on seven schools in Lesotho.  It is in the common cause that numerous construction companies submitted their tender bids including the two parties in the present matter, that is the applicant and the 3^rd respondent.

 

At the beginning of January 2011 the Ministry of Education and Training announced to all the construction companies which have made their bids to tender, for the construction of additional infrastructure to already existing buildings at a number of schools in LESOTHO, the result of the said tender.  The tenders received had been carefully evaluated and the most favourable bid was selected.

 

It is the matter of common cause that many construction companies had submitted their bids.  It is obvious from ANNEXURE “A”attached to the Founding Affidavit, that there was one winner.  Therefore many construction companies lost.   All the construction companies whose tender bids were not successful were invited to submit in writing any challenge they may have to the contract being awarded to the construction company whose tender bid was the most favourable.  It would appear that only the applicant construction company herein submitted in writing as stipulated in Annexure “A”  the complaint to the contract being awarded to the construction company whose tender bid was found to be the most favourable.

 

According to the deponent of the Founding Affidavit, a number of meetings were held between himself and the official or officials of the Tender Board of the Ministry of Education and Training presumably concerning his challenges to the award being given to the construction company whose tender bid was found by the Ministry of Education and Training to be the most favourable.  The attempts to convince him to accept the decision reached were unsuccessful according to this applicant.  The first such attempt was made in the meeting held on the 21^st January 2011.  This applicant was not satisfied.  A further meeting was scheduled for the 2^nd of February 2011.  According to him that meeting also was not successfully concluded in what favoured his tender bids and challenges to the successful tender bids. 

 

Yet another meeting was according to this applicant scheduled for a future unspecified date.  At this meeting the applicant was to meet with the Principal Secretary of the Ministry of Education and Training.  He does not spell out what significance was the expected inclusion of the Principal Secretary in that meeting.  While waiting to hear the date of this meeting, the applicant received a letter from no one other than the Principal Secretary himself.  ANNEXURE “B”.  In this letter the Principal Secretary informed this applicant that the Ministry has decided that the tender for six of the seven schools which needed additional infrastructure, will be re-evaluated by an independent evaluation team. This letter is dated 31^st March 2011.  The process which appeared concluded in January now appeared to be set for endless discussions if this applicant does not have his satisfaction.

 

On the 2^nd May 2011 another letter was written once more by the Principal Secretary of Ministry of Education and Training to this applicant on the subject of the tender in question.  This letter was now retracting the Ministry’s decision of submitting the tenders to an independent evaluation team for re-evaluation. 

 

 

This retraction of the re-submission of tenders to an independent evaluation team, is what this applicant takes exception to.  The applicant has approached this court by way of an urgent application – filed with this court on the 13^th May 2011.  Applicant wants the court to issue out the rule nisi in the following terms:-

1.     That Rule Nisi issued calling upon the Respondents to show cause why the following prayers shall not be made absolute:

 

(a)        Dispensing with the normal modes of service due to urgency.

 

(b)        Restraining and interdicting the 1^st Respondent from awarding the tender to the 3^rd Respondent pending finalization of this application.

 

(c)         Ordering the 1^st Respondent to submit the tender process to independent evaluation.

 

(d)        Costs against 1^st Respondent.

 

(e)        Costs in the event of opposition against 3^rd Respondent.

 

(f)  Further and/or alternative relief.

     2. That prayers 1(a) and (b) to operate with immediate effect as an

          interim interdict.

 

This application is opposed by only one of the respondents.  A NOTICE of INTENTION TO OPPOSEtogether with AN ANSWERINGAffidavit, have been filed on behalf of the 3^rd respondent. The 1^st and 2^nd respondents have not filed any papers at the time the matter was heard.  The 3^rd respondent is the construction company whose tender bids were considered as the most favourable by the Ministry of Education and Training tender board or Procurement Unit.  Two points in limine have been raised. I shall start to deal first of all with those points.

 

The first point in limine raised is that the applicant has failed to exhaust the local remedies before it approached this court.  It would appear that this applicant submitted a written complaint to the unit, following the date of the announcement of the contract award.  His complaint was dealt with perhaps by the body whose function it is to entertain matters of disputed awards but not to his satisfaction hence his approach to this court to ask for an order restraining the Ministry of Education and Training from awarding the tender to the 3^rd respondent.  It is argued on behalf of the 3^rd respondent that the applicant should have pursued his complaint through the Appeals Panel as set out in the Procurement Regulations 2007 before approaching the court.

 

When and where is the complainant entitled to appeal?  The complainant is entitled to appeal to the PPAD within 5 days, where the complainant does not agree with the decision of the unit.  Because the complainant avers that when the second meeting was inconclusive, the parties agreed to have another meeting which would include the Principal Secretary of the Ministry, this suggests that the decisions the applicant is complaining about were made by the unit in  terms of PART X – SETTLEMENT OF DISPUTES – SECTION 54 PUBLIC PROCUREMENT REGULATIONS 2007.  

Series of meetings appears to have been held between this applicant and perhaps the Procurement Unit.  Applicant does not specify the person or persons with whom he held these meetings.  It can only be presumed that since he was complaining of an award of the contract he must have lodged his complaint with the unit.  The unit must have dealt with the complaint in terms of SECTION 54 PUBLIC PROCUREMENT REGULATION 2007. The applicant in this matter, it is argued on behalf of the 3^rd respondent, should have pursued the matter through to the Appeals Panel rather than come to this court if he does no accept the decision of the body empowered to deal with such disputes.SECTION 54  (7) PUBLIC PROCUREMENT REGULATION 2007.  The relevant portion thereof reads; “Any further redress shall be pursued through the Appeal or the courts of law.” This applicant has discontinued the process which he had started by placing his complaint before that body which is authorised to settle such complaints. When he was still dissatisfied, he then approached this court instead of pursuing the appeal through the Appeal Panel.  On this point alone, this application must fail.

 

The second point in limine is not material at all.  The applicant is accused of non-joinder of a party who has substantial interest in the matter.  Who is that party?  Is that party not before this court?  From the papers filed of record it is clear that the party who has the substantial interest in the matter is before court.  It is that very same party which is allegedly left out that has filed opposing papers to the granting of the order sought.  The point of non-joinder cannot be sustained.  It is therefore dismissed as it is not well taken in this circumstances.

INTERDICT

Looking at an order sought, this applicant amongst other things, it is interdicting the 1^st respondent from awarding the tender to the 3^rd respondent pending finalization of this application.  For an applicant to succeed in an interdict proceedings, be it temporary or final, interdict, there should be satisfaction of the essential requirements.  Those are:-

(1)  The applicant must have a clear right which it seeks to

  protect.

 

(2)  There must be actual harm suffered or likely to happen.

 

(3)  There must be no other way except to proceed in this fashion

  in order to obtain redress.  VAN ZYL V LESOTHOHighlands

  and Others 1995.

 

First of all, the applicant must show the court that it has clear right.  The applicant does not claim to have any right at all.  Many construction companies had, like these two parties in this matter [the Applicant and the 3^rd respondent] tendered their bids to have the contract awarded to them.  There are winners.  There are losers.  What right has this applicant company?  None has been claimed.  None has been indicated to this court.

 

As laid down in the case of SETLOGELO V SETLOGELO 1914 AD 221; those essential requirements must be satisfied before an action or application to restrain a party can succeed.  The applicant must show the court that he has a clear right.  The applicant must also show court that if an interdict is not granted he will suffer an actual injury or that he has a reasonable apprehension to suffer the same.  The applicant must also show the court that he has no remedy other than proceed in this fashion.  SETLOGELO V SETLOGELO[Supra]

 

The applicant has failed to show this court its clear right to be awarded the contract instead of the 3^rd respondent or any other construction company.  It was not only the applicant company which lost the bid.  There were many others which also lost.  This applicant does not show the court its distinct right over and above the other losers.  This applicant has failed to show this court that he has a clear right.

Nienaber V Stuckey 1946 AD 1049 at 1053 – 4.

Johannesburg City Council V National Transport Commission 1990 (1) SA 199 @ 202 & 203.

Is there any harm? [actual or apprehended?]  The applicant claims that the 1^st respondent has intimated its intention to proceed with the process despite the complaints.  This will cause applicant irreparable harm.  What harm?  There were many bidders.  Many have not succeeded.  Only one has succeeded.  What harm is this one loser, amongst many, will suffer?  Applicant has not indicated that harm before this court.  By just alleging that if the award is made to someone else it will be caused to suffer irreparable harm is not enough.  The allegation must be supported.  By merely losing out to the most favourable bids does not cause irreparable harm to any of the losers.  It should be expected because there is only one winner.  Every bid is placed with the intention to win.  That does not make a bidder a winner.  Everybody tenders for the purposes of winning.  Every tender bid expects to win.  But it is just a wish.  It bestows no legal right to anyone.  As the saying goes, “if wishes were horses, we would all be riders”.  But, “wishes are not horses”.

 

The applicant has no right to protect by the order sought.  This applicant is not likely to suffer any harm.  But if the order is granted, certainly the 3^rd respondent who has been awarded the contract has some thing to lose.  The 3^rd respondent has already been issued with letter of acceptance.  In terms of the law of contract once the offer/tender is accepted, there is a binding contract where the offer is accepted as is without variations.  Collen V Rietfontein Engineering Works 1948 (1) SA 413 (A) at 420.  The 3^rd respondent together with the 1^st respondent have started preliminary arrangements for the commencement of the job.  These additional infrastructures at already existing schools must have been needed from the time the school commenced to function as such.  As shown in PLL2 attached to the Answering Affidavit, the 3^rd respondent is to build a science laboratory.  The delay caused by this one unsuccessful bid amongst many, will cause actual prejudice not just to the 3^rd respondent, but to the school and the pupils thereat where the additional infrastructure is needed.  One meeting after the other were held to give him satisfaction without success.  The dispute had to be brought to an end.  This end was brought about in total compliance with the Procurement Regulations 2007.  This applicant should have followed the matter through with the procurement unit to the appeals panel if need be.  Now to seek an order to restrain the 1^st respondent from awarding the contract after the fact, is an exercise in futility.  At this stage the process has moved beyond stopping.  It has ended.  The applicant can proceed by way of seeking damages rather than attempt to halt the process after it has reached its end.

 

I have already decide when dealing with the question of exhaustion of local remedies that it was premature for this applicant to come to this court in the manner it did unless it could be said he was appealing against the decision of the Appeals Panel.

 

Mr Matooane in his argument, insisted that this is not an appeal but a review even though it is not quite spelled out on the application itself as such.

 

Could this applicant be afforded redress in due course?  The answer is obvious!  For any loss incurred by this applicant, it can sue for damages.  This application was not the only way.  There are other more suitable alternative procedures that can be followed.

In these circumstances this application must fail.  It is therefore dismissed with costs.

 

K. J. GUNI

JUDGE

 

 

For Applicant:     Mr Matooane & Co.

For 3^rd Respondent: Mr Shale

For 1^st & 2^nd Respondents: No Appearance