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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

 

                                                                            

Case number: 2812/2018 

In the matter between:

 

CELL C SERVICE PROVIDER (PTY) LTD                        APPLICANT

 

and

 

MEC: FREE STATE PROVINCIAL                                    RESPONDENT

GOVERNMENT:  DEPARTMENT   

OF TREASURY                                                  

                  

 

CORAM:                       RAMPAI, ADJP

 

HEARD ON:                  14 FEBRUARY 2019

DELIVERED ON:        16 MAY 2019

 

RAMPAI, ADJP

[1]       The matter came to this court on 22 June 2018 by way of motion proceedings. The applicant initially approached the court on an urgent basis for an order compelling the respondent to provide the applicant with full and written reasons for its ostensible decision purportedly taken either during or about August 2017 or April 2018. The respondent was called up to do so within five days of the order sought. Leaving aside the subsidiary frills, essentially that was the gist of the relief sought.

[2]       The prerequisite of urgency was argued before me. On that initial occasion, 20 July 2018, I declined to entertain the matter since I was not persuaded that the applicant had made out a case for the urgent entertainment of its application. For that reason, I struck the application off the roll with costs. The matter was subsequently placed on the ordinary roll of opposed applications. Therefore, on this second occasion, 14 February 2019, one would  expect that I need not concern myself with the question of urgency any longer. But lo and behold! The prerequisite of urgency still keeps rearing its head time after time even on this second occasion although it was supposed to be dead and buried. It is by no means water under the bridge.

[3]       Between 22 June 2018 and 14 February 2019 there have been   many developments. On 11 September 2018 the applicant filed an amended notice of motion. I deem it necessary to quote paragraph 1 thereof which explains the order sought:

“The time period cast in section 5 of Promotion of Administrative Justice Act, 3 of 2000 for the provision of the reasons and documents sought below is reduced in accordance with the provisions of prayer 2, and in accordance with section 9 of this Act”

                  

[4]       At paragraph 2 of the notice of motion the applicant specified documents with a bearing on the reasons for the above ostensible decision. The required documents had to cover the following information:

 

“2.1     Full particulars in underscoring documents of the decision taken;

2.2.     The minutes of any meetings held whereby this decision and option was discussed and decided;

2.3.     Any and all documents that served before the decision-makers and functionaries that inform this decision, whether internally generated or externally sourced;

2.4.     Full and complete reasons as to why this decision was taken and more specifically why the respondent had decided to hop onto the National Treasury’s Transversal Contract”

                              

 

[5]       On 20 June 2018, about eleven weeks before the original notice of motion was amended, the applicant, on its own accord, filed the third party notices on the respondent’s attorney. The following Members of the Executive Council: Free State Provincial Government, were cited as the targeted third parties who were, in a sense, regarded as co-respondents.

                   5.1.   Department of Social Development - first third party;

5.2.   Department of Sports, Parts, Culture and Recreation - second third party;

5.3.   Department of Cooperative Government and Traditional Affairs - third third party;

                   5.4.   Department of Human Settlements – fourth third party.

          

[6]       The first three paragraphs of the ‘third party notice’ read as follows:

“TAKE NOTE that the above-mentioned applicant has commenced proceedings against the above named respondent for the relief set forth in the notice of motion and founding affidavit ( together with annexures thereto) , a copy of which is herewith served upon you.

TAKE NOTE THAT the above named respondent has indicated by means of an opposing affidavit that it had not taken a decision (either in or about August 2017 and/or April 2018) to participate in the National Government Treasury Bid and Contract Styled - RT15/2016: Supply and Delivery of Mobile Communication Service Transversal Contract. A copy of the opposing affidavit is served upon you. In essence, the respondent contends that each of the third parties had taken their own decision, that no uniform decision was taken across the board for the entire Free State Provincial Government and thus that it – i.e. the respondent - cannot provide the reasons and documents the applicant seeks.

TAKE NOTE THAT if you dispute the grounds the respondent has raised - particularly that you had not taken a decision to so henceforth participate in the National Treasury Bid - or if you dispute the applicant’s claim against the respondent as to its entitlement to reasons for the decision(s) and underscoring documents, you must give notice of your intention to defend this proceeding within five days for delivery of this notification upon you.”

                  

[7]       On 27 June 2018 the respondent informed the appellant that the applicant had taken an irregular step by filing such third party notices, after the close of pleadings, without the leave of the court first sought and obtained. The respondent further complained that the applicant had wrongfully called upon the above provincial departments to file their answering affidavit within five days of service of such notices. The respondent contended that since the matter was no longer urgent, the applicant was not entitled to have the normal timelines pertaining to service or exchange of pleadings truncated. Thereupon, the respondent called upon the applicant, in terms of rule 30, to remove the cause(s) of its complaint.

          The applicant ignored the respondent’s complaints.

 

[8]       On 11 September 2018 the applicant served and filed its amended notice of motion. The respondent was called upon to signal its intention to oppose the amended application, by no later than 25 September 2018 and to file the opposing affidavit by no later than 16 October 2018.

[9]       On 26 September 2018 the respondent informed the applicant that the applicant had taken an irregular step by serving and filing an amended notice of motion. The respondent complained that such notice failed to comply with rule 6(3) read with rule 6(5) (b) and rule 1.

           The respondent contended that the applicant had infringed its procedural right as envisaged in rule 6(13). The rule requires that, in the case of any application against an organ of state, the respective formal and ordinary periods referred to in rule 6(5)(b) shall not be less than 15 days after the service of the notice of motion unless the court has specifically authorized a shorter period. On the computation of any timeline expressed in days, only court days and not calendar days shall be taken into account - see rule 1. That was the respondent’s first complaint which was levelled against the amended notice of motion.

[10]     The respondent also informed the applicant that the applicant had taken another irregular step by serving, on the State Attorney, on 11 September 2018 the amended notice of motion which were meant for “The Third Parties”; that the applicant did so without identifying or citing the alleged “third parties” either in the notice of motion or in an amended application and that the applicant did so in contravention of rule 13(3). Moreover, the respondent further complained that the court had neither granted leave to the applicant to serve and file such “third party notices” after the close of pleadings nor condoned the truncated timelines for the filing of such processes.

          The applicant ignored the respondent’s complaints levelled against the amended notice of motion.

[11]     On 29 August 2018 the applicant served and filed a notice of set-down for the hearing of the main application on 20 September 2018.

[12]     On 7 September 2018 the respondent informed the applicant, in terms of rule 30, that the applicant had taken an irregular step by delivering such a notice of set-down. The ground of the complaint was that the applicant had failed to rectify its defective amended notice of motion. The respondent also called upon the applicant, in terms of rule 30A, to remove the cause of the complaint - violation of rule 6(5)(b) and form 2(a).

[13]     On 11 September 2018 the applicant, seemingly in an implicit response to the respondent’s complaint, removed the matter from the roll of 20 September 2018.

[14]     On 17 October 2018 the respondent called upon the applicant, in terms of rule 35(12), to produce specified documents for inspection and to allow the respondent to make photocopies thereof. Among others, the required documents included the alleged existing contracts between the applicant and each of the specific provincial departments which were referred to in the applicant’s founding affidavit. Notwithstanding the respondent’s request, the applicant never produced any of the alleged existing contract.

           This completes a history of the early procedural skirmishes between the parties.

[15]     A brief background of the dispute is necessary. The origin of the dispute emanated from an agreement termed Free State Provincial Transversal Contract. It was a two-year contract. The respondent called for public tenders. The applicant tendered for the supply and delivery of voice and data solutions to the provincial departments of the Free State Government for two years. The applicant submitted its tender on or about 12 November 2013 pursuant to the respondent’s invitation to bid. Its bid was successful.

[16]     A service level agreement was subsequently concluded on 4 August 2014 – see “anx O3” a document with the heading - the contract form - rendering of services. There were four provincial departments that were interested in the services offered by the applicant. The respondent acted as a facilitator between such departments and the applicant. The four departments that participated in the provincial transversal contract were referred to as service users.

[17]     Clause 6.5 of the service level agreement provided that the four participating departments were precluded from signing similar agreements with any other service provider and that the service level agreement was subject to the provisions of the Public Finance Management Act 1 of 1999 as well as Treasury Regulations and Notices published in terms of the particular legislation. It was specifically agreed between the parties that the service level agreement would endure until 3 August 2016. These aspects were again confirmed in the acceptance letter. The provincial transversal contract was terminated by effluxion of time on 30 August 2017 – vide “anx 04” read with “anx 05” whereby the provincial transversal contract was converted into a month-to-month agreement which was finally extended to 13 October 2017.

[18]     During or about March 2016 the National Treasury invited public tenders for the supply and delivery of mobile communication services to the national government departments and the provincial government departments as from 15 September 2016 to 31 August 2020. The applicant was not only aware of such public tenders but actually submitted a tender bid, albeit belatedly.

[19]     The applicant knew, all too well, as early as 4 August 2014 that the framework contract whereby it rendered cellular services to the four provincial departments of the Free State Government was valid for 24 months only; that such contract would terminate on 3 August 2016 and that at that particular point in time all contractual obligations of the respondent towards the applicant would be extinguished ipso iure.

[20]     As from 4 August 2016 the framework contract was extended from month-to-month at a time. Obviously the series of monthly extensions was done in contemplation of the expected migration of the four departments from the provincial domain to the national domain of participation in mobile communication services. The final monthly extension was made known to the applicant on 28 February 2018 – see “anx O4.” The respondent’s contractual obligations towards the applicant by virtue of periodic extensions ultimately ended on 31 March 2018, almost 20 months since the expiry of the original contract period of 24 months. On that day the short-term periodic component of the framework contract also finally ceased.

[21]     Throughout that entire period of almost two years, the applicant took no steps at all to safeguard its interests in a practically meaningful way. Bearing the above history in mind, the obviously passive stance of the applicant was not surprising to me. The applicant took its time to assert its alleged rights. Such inordinate delay tends to strengthen the respondent’s contention that the applicant knew all along that it had no rights protectable by law.

[22]     Prior to the end of the periodic month-to-month contract, the respondent delivered, per brevi manu, notice of cessation, “anx 015,” on 29 September 2017 to the applicant. The previous notice of cessation, “anx O4,” was thereby expressly retracted. The new date of cessation was then given as 13 October 2017.

[23]     In its founding affidavit, the applicant merely stated that the import of the letter, “anx O4,” dated 30 August 2017 was not implemented. As to what the real significance of non-implementation was, the appellant did not venture to say. What was significant was the fact that no effort at all was made by or on behalf of the applicant to deal with the hard fact that the respondent advised the applicant that the short term component of the provincial transversal contract would finally cease on 30 September 2017 and that the applicant did not immediately take any decisive steps to protect the rights it lays claim to. The respondent’s deponent, Mr MNG Mahlatsi, the head of the department, wrote:

 

“NOTICE OF CESSATION OF THE VOICE AND DATA SOLUTIONS TRANSVERSAL CONTRACT: FSPT003/13/14

The above-mentioned bears reference

Kindly take note of the termination of the voice and data solutions transversal contract: FSPT003/13/14 one 30 September 2017.

The current provincial Transversal Contract for the voice and data had to expire on 3 August 2016 and was extended on a month-to-month basis until 30 September 2017. No extension will be made beyond 30 September 20 17.

Please be informed that as from 1 October 2017 the Free State Government Departments will be participating on the National Treasury RT15-2016: Supply and Delivery of Mobile Communication Services Transversal Contract which was allocated to Vodacom. Kindly provide Vodacom with necessary cooperation.

Free State Provincial Treasury would like to thank Cell C for the astonishing services provided to the Free State Government Departments during the tenure of the contract.”

 

[24]     The applicant did not know when the second notice of cessation was given. It will be recalled that through the second notice the first notice of cessation was withdrawn. Moreover, the appellant did not know that at the end of the next deadline a further month-long extension would be granted by the respondent. I gained the impression, which was strengthened by the applicant’s passive attitude over a long period of time, that the regular process of extensions was solely driven by the respondent on its own accord. If it is accepted, and I believe it should, that the extension was a matter entirely in the discretion of the respondent, then it follows that the applicant had virtually no right whatsoever to demand any extension. If I am correct, then the applicant would not have been entitled to be given reasons for the termination of a fixed term contract.

[25]     The applicant stated in the founding affidavit that the matter was urgent; that the respondent refused to provide reasons for its decision; that the unfair administrative decision was taken during or about August 2017 or alternatively during or about April 2018; that the primary aim of this application was to obtain reasons which prompted the respondent to decide that the entire Free State Provincial Government would participate in the national transversal contract; that it sought such reasons in order to give effect to its constitutional rights to a fair administrative action; that the applicant, out of abundance of caution, also seeks to have its  non-compliance with Sec 5 Promotion of Administrative Justice Act 3 of 2000 condoned by the court; that it has done business with the Free State Government for a number of years; that it has lucrative extant contracts with four departments in the province; that National Treasury awarded national transversal contract to Vodacom (Pty) Limited for the supply and delivery of mobile communication service to national government departments  along with all provincial government departments; that notwithstanding such a national framework contract no  government entity was obliged to migrate from provincial transversal contract in order to make use of the national transversal contract and that on 30 August 2017 the respondent notified the applicant that the provincial departments of the Free State Government would be  participating in the national transversal contract as from 1 October 2017.

[26]     The applicant further stated that upon receipt of a letter dated 19 April 2018, marked “anx gm3”, from the Department of Sports, Arts, Culture and Recreation, it became evident that it was required to take certain steps designed to facilitate the porting, in other words the migration of the contracts it had with the provincial departments to a new service provider, namely: Vodacom (Pty) Limited. 

[27]     On 4 May 2018 the applicant, via its attorneys, addressed a letter, “anx gm4”, to the respondent. The respondent was requested to provide reasons and underscoring documents pertaining to its alleged unfair administrative decision to migrate from the provincial domain where the provincial transversal contract was operative to the national domain where the national transversal contract was operative.

           The respondent responded by way of a letter dated 9 May 2018 labelled “anx gm5”. However, the respondent provided no reasons for its decision. Instead it confirmed that Vodacom (Pty) Limited would, from then on, be the new and exclusive service provider for the entire Free State Government and asked the applicant to co-operate in order to expedite the porting process. It then became apparent to the applicant that the unilateral cancellation of the separate agreements it had with the individual provincial departments was entirely precipitated by the decision of the Provincial Treasury: Free State Government, in other words  the respondent.

[28]     Notwithstanding further exchange of correspondence between 1 May 2018 and 2 June 2018 - see “anx gm6” and “anx gm7” - the respondent refused to provide the required reasons which had informed its decision to terminate the provincial transversal contract in favour of the national transversal contract.

[29]     On 4 June 2018 the applicant launched the current application. By then the relief sought was twofold: provision of reasons together with underscoring documentation as well as condonation for non-compliance with Section 5 Act No. 3/2000.

[30]     In its answering affidavit the respondent denied the allegations that the matter was urgent; that the respondent as a Provincial Treasury, could be properly sued alone in connection with a provincial transversal contract it had facilitated between a service provider and provincial departments without simultaneously joining the heads of such departments; that the applicant had any separate extant agreement with each of the four provincial departments concerned; that the respondent had taken any unfair administrative decision or committed any unfair administrative act against the applicant; that the applicant was, on the merits entitled to the relief sought and that the applicant’s inaction or delay in launching this application in order to protect its alleged constitutional rights to fair administrative action was condonable.

[31]     The respondent admitted the averments that the Provincial Treasury: Free State Government issued an invitation to bid for the supply and delivery of voice and data solutions; that the applicant had tendered to render such services to all the provincial departments for a period of two years; that the applicant successfully tendered as would appear from the letter of appointment, “anx 02”, dated 1August 2014; that the effective date of the two year provincial transversal contract was 4 August 2014; that the parties subsequently concluded a service level agreement, “anx 03” in Bloemfontein on 4 August 2014; that the agreed contract completion date was 3 August 2016; that four departments were allocated to the applicant and that as from 4 August 2016, the provincial transversal contract was extended on month-to-month basis.

[32]   The respondent added that the applicant knew, as far back as 4 August 2014, being the effective date of the agreement, that the framework agreement would be valid for 24 months only; that the applicant was also fully aware that the extension, by itself, did not create any further and future contractual rights beyond any given particular month extension; that at the end of any given particular month such short term agreement would automatically terminate if not further extended; that the applicant was aware of the national transversal contract issued in March 2016 by the National Treasury for the period commencing on 15 September 2016 and ending on 31 August 2020; that the applicant showed interest in the rendering of such services; that the applicant actually submitted a bid; that its bid was, however, submitted late; that after receiving the respondent’s notice of cessation, “anx 04” on 30 August 2017, the applicant took no practical steps  to assert its alleged infringed rights and that the applicant was, long before April 2018, aware of the pending migration of the four provincial departments from the provincial transversal contract to the national transversal contract.

[33]     In its replying affidavit, the applicant admitted that it had requested the respondent to provide written reasons and underscoring documents on 4 May 2018 – see “anx gm7”; that the respondent declined to comply with its request; that the respondent was adamant that sec 5 of PAJA 3 of 2000 or any provision thereof was applicable to the dispute and that the applicant did receive the respondent’s notice of cessation dated 30 August 2017.

[34]   The applicant denied the respondent’s contentions that it had no protectable rights; that the respondent had not administratively infringed its rights; that the respondent was, therefore, under no legal obligation to provide reasons and documents to the applicant in accordance with the applicant’s request; that the applicant was not entitled to the relief sought; that the respondent’s refusal to comply with its request was justified; that the matter was regulated by sec 11 Promotion of Access to Information Act 2 of 2000 and not PAJA; that the application lacked the requisite element of urgency; that if any urgency existed, which allegation the respondent persistently denied, it was self-created; that according to law the provincial departments concerned ought to have been joined from the outset; that the applicant’s omission to do so was a fatal irregularity; that the decision of the respondent and all the  provincial departments  to migrate from the provincial transversal domain to the national transversal domain did not constitute an administrative act and that, for that reason, it was not reviewable by a court of law.

[35]   As earlier pointed out, the application was launched on 5 June 2018. It was enrolled for hearing on 22 June 2018 as an urgent application. On that day I ruled in favour of the respondent that the matter did not deserve to be heard as an urgent application. Now I proceed to examine the factual allegations and to apply the principles of law.

[36]     In the first place, I deal with the issue of non-joinder. In this regard the crucial question which I have to determine is whether the accounting officers of the four provincial departments that participated in the erstwhile provincial transversal contract which was issued by the Provincial Treasury : Free State Government and awarded to the applicant, should have been joined to these motion proceedings as co-respondents or not ab initio.

[37]     On behalf of the respondent, Mr Snellenburg argued that the four provincial departments, in respect of which the four accounting officers were answerable, had and still have a legal interest in the matter. Therefore, counsel submitted that the responsible accounting officers should have been joined. On the strength of this submission, counsel implored me to determine the issue in favour of the respondent.

[38]     On behalf of the applicant, Mr Grobler differently argued the point.  The foundation of counsel’s argument was that the four provincial departments that were allocated to the applicant in terms of the provincial transversal contract had no direct interest in the matter. This was so, counsel argued, seeing that the provincial transversal contract in question was issued by the respondent and not by the accounting officers in their representative capacities. In developing that line of argument further, counsel also contended that the respondent, and apparently not any of the accounting officers, unilaterally decided that all the provincial departments in the Free State Province must migrate to the national transversal domain. By virtue of these contentions, counsel submitted that dragging the responsible but uninterested accounting officers into the arena of these motion proceedings would have constituted a classic case of misjoinder. On the strength of these submissions, counsel urged me to decide the question in favour of the applicant.

[39]     Let me turn to the applicable principles of law. The test as to whether a third party should or should not be joined revolves around the question whether such third party has direct and substantial interest in the outcome of the subject-matter of the litigation at hand. In City of Johannesburg and others v South African Local Authorities Pension Fund and others [2015] JOL 32956 (SCA) in para [9], the court elucidated the test and explained the undesirable repercussions of non-joinder as follows:

“A ‘direct and substantial interest’ is more than a financial interest in the outcome of the litigation. A test often employed to determine whether a particular interest of a third party is the one or the other, is to examine whether a situation could arise in which, because the third party had not been joined, any order the court might make would not be res judicata against that party, entitling him or her to approach the court again concerning the same subject-matter and possibly obtain an order irreconcilable with the order made in the first place…”

See also Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A)

[40]   It has been authoritatively held that if a judgment or order cannot be sustained without necessarily prejudicing the interests of a third party that has not been joined, then in such a case such a third party has a legal interest in the subject-matter and must, therefore, be necessarily joined– Gordon v Department of Health, KwaZulu- Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA)

[41]     Sec 36(2)(a) Public Finance Management Act 1 of 1999 assigns or designates the head of department (HOD) as an accounting officer of such a department. In other words, the head of any government department is, ex officio, its accounting officer.

[42]  Among others, regulation 16A of the National Treasury Regulations, made and issued in terms of sec 76 Act No 1 of 1999 (Public Finance Management Act), deals with the procurement of goods and services by the state organs. The relevant part thereof is sub-regulation 6. It provides that:

“Accounting officer or accounting authority may, on behalf of the department, constitutional institution or public entity, participate in any contract arranged by means of a competitive bidding process by any other organ of state, subject to the written approval of such organ of state and the relevant contractors.”

 

[43]     In terms of the above regulation, the appointed departmental head, in his capacity as the accounting officer, may opt to participate in a provincial transversal contract facilitated by the relevant provincial treasury. Needless to say that a provincial treasury is but one of the envisaged organs of the state and as such can competently act as a facilitator of transversal contracts. In other words the relevant provincial treasury, in this case the respondent, cannot lawfully coerce an unwilling accounting officer to participate in any transversal contract – be it provincial or national. The decision as to whether a provincial department should or should not participate in such a transversal contract, resides in the discretionary province entrusted to an accounting officer in terms of the above statute. A provincial treasury merely acts as a kind of an external financial advisor to an accounting officer. That being the case, it follows that it cannot override a decision taken by an accounting officer of a provincial department. The buck stops with an accounting officer. His or her word is final. It binds a department he or she heads. This explains the reason why the rest of the departments apart from the four had exercised their options differently. They did not participate in the provincial transversal contract awarded to the applicant.  As far as the accounting officer is concerned, the only binding and prohibitive aspect of the regulation is that once an accounting officer has positively exercised his or her option to participate in a particular transversal contract, (s)he may not solicit bids from other service providers for the supply of the same or similar goods or the rendering of the same or similar services during the tenure of the transversal  term contract.

[44]   In view of the above considerations, I am persuaded that each of the departmental accounting officers in question has and always had a legal interest in the matter – Gordon v Department of Health, supra; that the interest of each of them in the ultimate outcome of this litigation is direct and substantial – Amalgamated Engineering, supra;  that the matter cannot be adjudicated without necessarily prejudicing them and that, for these reasons, they should have been joined right from the onset – Gordon, supra.

[45]   The point was well taken, in my view. It is not bad in law at all as the applicant contended. I would, therefore, uphold the point raised in limine by the respondent that the applicant’s omission to cite, to join and to serve the departmental accounting officers of the provincial departments concerned constituted a materially fatal non-joinder.

          On that ground alone I would strike the application off the roll with costs.

[46]   In an attempt to cure the above defect of the non-joinder, the applicant caused “third-party notices” to be issued. The respondent objected and complained that the notices in question were issued  and served in an irregular way and that, therefore, they did not cure the defect  occasioned by the non-joinder.

[47]   The stance of the applicant was that the “third-party notices” were given to the provincial departments on 20 June 2018; that they were perfectly valid; that there was virtually nothing irregular about them; that such notices were really not necessary; that all the same it merely issued and gave such notices out of abundance of caution; that that was so because it had concluded the provincial transversal contract with the respondent and that the departments concerned were not privy to such contract.

[48]   The question which falls to be determined at this juncture is whether the pleadings were already closed or not at the time the applicant’s “third party notices” were issued and served.

[49]   The respondent’s contention was that the state of litis contestatio was reached upon the filing of a replying affidavit on 20 June 2018, being the date on which the applicant’s replying affidavit was filed. As already indicated, the “third party notices” were also filed on the same date.

[50]   The applicant’s contrary contention was that the state of litis contestatio was reached after the filing of the “third-party notices” which notices were filed together with the replying affidavit on 20 June 2018.

[51]   Now I turn to the applicable principles of law. The filing of a “third party notice” is governed by rule 13(3)(b) of the Uniform Rules of Court. The rule delineates:

“(b)      After the close of pleadings, such notice may be served only with the leave of the court.”

 

[52]   After the close of pleadings, a “third party notice” may still be served but only with the leave of the court first sought and obtained. The granting of such leave is not a mere formality. The rule requires a party applying for leave to serve such notice to furnish a satisfactory explanation for his or her failure to serve such notice before the close of pleadings and to make out, on the substantive merits, a prima facie case against the third party sought to be joined – Erasmus: Superior Court Practice: Second Edition: Volume 2 at D1-147.

[53]   A rule of procedure, subsidiary to the above mentioned rule, is rule 29(a) which delineates that pleadings are considered closed if either party has joined issue without alleging any new matter, and without adding any further pleading.

[54]   Now, let me turn to the facts. In this instance, the founding papers were served on 5 June 2018. The initial date on which the founding affidavit is served, determines the last date on which an answering affidavit has to be filed as well as the last date on which a replying affidavit has to be filed. In the present matter, the respondent served the answering affidavit on 14 June 2018. The applicant then filed the replying affidavit on 20 June 2018. The applicant alleged no new matter in the replying affidavit and added no further pleading whatsoever on that particular day or on any other day afterwards. Similarly, subsequent to the service of the replying affidavit, the respondent has alleged no new matter or added no further pleading on the substantive merits of the dispute.

[55] There being no new contentious points raised and there being no further pleadings added on or after 20 June 2018, the parties effectively joined issues on that particular date. As between the parties themselves, the pleadings were, therefore, by law considered closed on 20 June 2018, being the date on which they joined issues. It is not the case of the applicant that the exchange of pleadings was closed on any other specified date after 20 June 2018. That being the case, it has to be accepted that the effective date of litis contestatio was 20 June 2018. It has not been argued otherwise and it cannot.  

[56]   The bottom line of the applicant’s case is that because the notices in terms of rule 13(3)(a) of the Uniform Rules of Court were served together with the replying affidavit, such notices must be considered to have been served before and not after the close of pleadings.

[57]   The contention of the applicant takes us back to the chicken or egg debate that has been going on for centuries. Which came first? The proper and efficiently functioning of the courts would be seriously impeded if they were required to take into account the precise time: our, minute and second in order to determine whether such a notice was served before or after the service of the replying affidavit. Doing so would give rise to endless factual dispute as to the exact moment in time the notice was served and as to the exact moment in time the replying affidavit was served. It may be very cumbersome to determine such factual details.

[58]   The lawmaker was mindful of such practical difficulties. The rules of procedure were then made to obviate possible future difficulties that were foreseen. There are two applicable rules here, which are rule 13(3) and rule 29(1).

[59]   It is significant to appreciate that two distinct procedures are envisaged in rule 13(3). The rule, first and foremost, requires a joinder applicant to serve a “third-party notice” on the targeted third party before the close of pleadings. Such procedure is implicit in sub rule 3(b). It is an ordinary procedure. It is direct, simple and straightforward. There are no strings attached. It is less formal and less cumbersome. This is the first remedial rule of procedure.

[60]   In the second place, the rule allows a joinder applicant who, for some good reason, could not serve a “third party notice” on the targeted “third party” before the close of pleadings, to serve such notice even though the pleadings had already been closed. Such a procedural right is explicit in sub rule 3(b). However, post litis contestatio, such notice may only be served with the leave of the court. This is the second remedial rule of procedure. It follows, therefore, that direct service of such notice after the pleadings have been closed without the requisite sanction of the court first sought and obtained is prima facie irregular.

[61]   The evidential burden rests on the joinder applicant to satisfy the court, hearing the belated application to serve a third party notice post litis contestatio, that sound and compelling circumstances exist which justify the service of the notice after the close of pleadings. As can be readily appreciated, an extraordinary procedure is envisaged here. It is an indirect procedure. It is not simple and straightforward. It is a whole lot more cumbersome and more formalistic than the ante litis contestatio procedure. It requires prior authorization by the court. There are astringent strings attached.  

[62]   Those then are the two procedural rights accorded to a joinder applicant. The remedial right before the close of pleadings and the remedial right after the close of pleadings are exhaustive. There is no other right via media. Between these two rights, no hybrid right exists in law. The close of pleadings is ascertained according to days and not ours. An applicant in terms of rule 13(3) is not accorded any further procedural right whatsoever to simultaneously serve a notice in terms of this rule together with any closing pleading. In this instance the closing pleading was the replying affidavit. The last day allowed for its filing lapsed on 20 June 2018. Therefore, the last day on which the notice in terms of rule 13 could have been properly served without the required prior leave to serve was 19 June 2018. Because that was not done, they could only have been properly served after 20 June 2018 with the required prior leave of the court sought and granted before they could be served. That was not done.

[63]   A third party notice in terms of rule 13 is, in our law, regarded as a pleading completely distinct and autonomous from the main action or claim or any pleading in response to such main claim. See ABSA Bank Ltd v Boksburg Transitional Local Council (Government of the Republic of South Africa, Third Party) 1997 (2) SA 415 (W). In this case, I am of the firm view that pleadings would have been considered closed upon the filing of the replying affidavit. Consequently, the leave of the court was necessarily required prior to the service of such third party notices. Since the requisite leave to serve as envisaged in rule 13(3)(b) was not sought, the rule was not complied with. In view of this omission, the applicant’s service of the notices was non-responsive to the rule. Such unauthorized service was procedurally defective. The purported simultaneous service was a fruitless exercise.

[64]   The respondent objected to the circumvention of the court by the applicant. The respondent did so by delivering notice in terms of rule 30. Pursuant to the service of the notice, the applicant purported to apply for condonation. However, the applicant gave no satisfactory explanation as to why sub-rule 3(b) was not complied with. Instead of giving satisfactory reasons for its failure to comply with the rule, the applicant still maintain that the leave of the court was not required seeing that the notices were simultaneously served together with the replying affidavit. I am not inclined to condone the applicant’s breach of the rule. Obviously the applicant applied for condonation with a tongue in the cheek. Moreover, the applicant has made out no prima facie case against any of the third parties on the substantive merits. See Erasmus op cit. In a case where the explanation is poor and the merits are also poor - the courts do not readily condone noncompliance with its rules. In casu, there is nothing to compensate anything. The substantive merits are very poor. Worse still, there is hardly any explanation to talk about.

[65]   The fact that the heads of the departments, as accounting officers, made confirmatory sworn statements, does not assist the applicant at all. Being witness to the respondent does not cure the non-joinder. As deponents to those confirmatory affidavits, the departmental heads were mere witnesses, nothing more. The failure of the applicant to properly join them as independent litigants in their own right and in their designated capacities as accounting authorities of those departments was fatal to the application. They were supposed to have been cited as co-respondents from the beginning of these proceedings or subsequently joined by way of compliant rule 13 notices. It was never done. 

         To rub salt into the wound, the notices in question were not served on the accounting officers. Instead the applicant abrogated unto itself the right to serve those notices on the respondent’s legal representative. Such service was done without the knowledge, let alone the consent, of the accounting officers concerned. The hard fact of the matter is that the accounting officers are not before me as they were supposed to be. The applicant’s dilemma is nothing less than a harvest of neglect.

 

[66]   In the circumstances, I am inclined to decide the issue of non-joinder in favour of the respondent. The preliminary point was well taken. It was good in law. The unauthorized service of the third party notices which the applicant caused to be improperly served have to be regarded as null and void ab initio.

[67]   In the third place, the issue is whether participation of the provincial departments in the national transversal contract constitutes an administrative act or not.

[68]   In its founding affidavit, the applicant alleged that it launched these motion proceedings in order to give effect to its constitutional rights to fair administrative action; that it had extant contracts with the Department of Government (sic) and Traditional Affairs, Department of Human Settlement, Department of Social Development as well as Department of Sport, Art, Culture and Recreation; that the extant contracts it had with the above departments had been unfairly taken away and unfairly awarded to its cellular rival, Vodacom (Pty) Limited for the period 15 September 2016 to 31 August 2020; that the government entities such as provincial departments were not forced by the National Treasury to participate in the national transversal contract; that contrary to that executive policy, the Provincial Treasury: Free State Province took a decision whereby all the provincial department in the province were obliged to participate in the national transversal contract awarded to Vodacom (Pty) Limited  by the National Treasury and that it was, therefore, entitled to invoke the provisions of PAJA in order to mount this challenge to such an unfair administrative decision and the unfair administrative  action which flowed from such a decision.

[69]   In its answering affidavit the respondent denied the allegations that the applicant had any constitutional rights vis-a-vis the respondent; that the respondent had infringed the applicant’s rights to a fair administrative action; that the applicant had any extant contract with any of the provincial departments mentioned above; that the decision of any provincial department to participate in the national transversal contract constituted an administrative action; that the Provincial Treasury: FSG or the Free State Government itself compelled its provincial departments to participate in the national transversal contract awarded to Vodacom (Pty) Limited and that the applicant was entitled to be given  information in terms of PAJA. All those allegations the respondent denied.

[70]   In its replying affidavit the applicant failed to refute the respondent’s averment that the applicant had no existing contract with any of the provincial departments. After the filing of the replying affidavit the respondent called upon the applicant to produce the alleged extant contracts for inspection. Notwithstanding service of such formal request in terms of rule 35(12), the applicant could hardly produce one of the alleged separate contracts. Therefore, it has to be accepted that the alleged extant contracts have, in truth and in reality, never existed. If they did, the applicant would certainly have produced them for inspection by the respondent. Since the respondent denied the allegation, the ball was in the applicant’s court. However, the applicant was not able to prove or to substantiate its allegation. In view of the applicant’s failure to produce the alleged contracts, it must be accepted that the applicant failed to refute the respondent’s averment that the applicant had no existing contract with any of the provincial departments as alleged.

[71]   It will be readily appreciated that the applicant’s allegation that separate and valid contracts were still in existence at the time these current motion proceedings were launched, was calculated to make the court believe that the applicant had a legitimate right or interest worthy of protection by law and that such right or interest could be adversely affected unless the court granted the relief sought. However, no such contracts were proven to have ever existed. This finding is telling against the applicant’s alleged constitutional right to fair administrative action. Such rights would not have existed in a vacuum. I am still at a loss as to what the foundation of such rights was.

[72]   It did not end there. The applicant  went a step further and alleged that the provincial transversal contracts it had with the  four departments  concerned were not only unfairly terminated, but worst still, that such valid contracts were then unfairly awarded to its rival competitor. The import of the allegation was legally untenable. If it is accepted, and I think it must, that the applicant has no such contracts and that the applicant never had such contracts - then it follows, as a matter of simple logic, that there was virtually nothing that could have been unfairly taken from the applicant. In pretty much a similar vein, there was virtually nothing that could have been unfairly awarded to the applicant’s rival competitor.

[73]   The fact of the matter is that the applicant admittedly had a fixed term agreement or provincial transversal contract – call it what you will, with the respondent. There were only four out of a number of provincial departments which chose to participate in that contractual setup that had been facilitated by the respondent. None of the four was compelled to do so. That particular fixed term contract came to its natural end in accordance with the terms and conditions which the two parties had agreed upon. In my view, the applicant never had and still has no right to a further contract beyond the expiry date of the original fixed term contract. This is an abortive attempt to hold over.

[74]   I hasten to point out that the applicant was, of course, entitled to tender for the national transversal contract in the same way as Vodacom (Pty) Limited was. It was an undisputed fact that the applicant saw nothing legally wrong with that particular state procurement process. Instead of mentioning any legal challenge to the process on the grounds that it adversely affected its constitutional right to fair administrative action, the applicant voluntarily participated in that state procurement process, the very same process which he now seeks to discredit. However, the applicant’s attempts to bid went up in smoke because it submitted its bid late.

[75]   Now the question must be asked as to why the applicant chose to participate in such a constitutionally tainted process? If the valid contracts the applicant had with the provincial departments were unfairly terminated, unfairly taken away from the applicant and en bloc unfairly awarded to another corporate enterprise in violation of the constitutional imperative of fair administrative action, why did the applicant take its time before this application was launched in order to protect its alleged constitutional rights?  I could find no answer to the question anywhere in the applicant’s papers. The subsequent conduct of the applicant cannot be reconciled with its previous conduct of silent but active collaboration. The fact of the matter is that the applicant did not find anything wrong with the national transversal contract until the four provincial departments opted to migrate from the provincial sphere to the national sphere of state procurement. Needless to say that this court would not be grappling with this matter had the applicant, and not Vodacom (Pty) Limited, been awarded the national transversal contract.

[76]   Moreover, I have to point the obvious out. The contract, that has caused the applicant so much grief, is in fact a national transversal contract facilitated by the National Treasury. The respondent, a Provincial Treasury, had absolutely nothing to do with the awarding thereof to Vodacom (Pty) Limited. Not a single department of the Free State Government was obliged to participate in the national transversal contract. The respondent did not make a unilateral decision whereby all or any of the provincial departments in the Free State Province were or was forced to participate in the national transversal contract. The four designated and responsible departmental accounting officers, on their own, freely and autonomously made such decisions on behalf of their departments. In doing so, they used their own discretionary powers. Neither the Provincial Treasury nor the National Treasury coerced any of them to do so.

[77]   I need to stress that when the various accounting officers in the Free State Province individually and autonomously decided that the provincial departments they headed participate in the national transversal contract, no valid contracts existed between any of their departments and the applicant. Consequently, they were under no contractual obligations or existing legal duty to seek the blessing of the applicant before they could lawfully participate in the proposed national transversal contract. In my understanding participation was voluntary. 

[78]   In the circumstances, I have come to the conclusion that the decision of any provincial department to participate in the national transversal contract does not constitute an administrative action. Any department is at liberty to make an internal decision to participate or not to participate in a national transversal contract. Such an internal decision has absolutely no external effect. By its very domestic nature, such a decision is not reviewable by a court of law in terms of any statute. In short, it is an executive decision. The principle is clear. Public decision-makers, such as heads of government departments, are under no obligation to consult outsiders as to how they should best procure goods or services they need to run their departments. It is trite that executive decisions are not ordinarily reviewable by the courts. 

[79]   In the light of the above considerations, the allegation of Cell C (Pty) Limited that the Free State Government had taken an unfair administrative decision, pioneered by the respondent, whereby all of its provincial departments were coerced or obliged to participate in the national transversal contract was not supported by the proven facts. Therefore, any contention or suggestion that the procurement process whereby the national transversal contract was awarded to Vodacom (Pty) Ltd was underpinned by monopolistic connotations was unfounded. The contention was yet another ploy to create an impression that there was only one universal decision with external effects. The Free State Government did not commit any monopolistic act by usurping the public power legally entrusted to the departmental heads in their designated capacities as accounting officers.

[80]  In the circumstances, I am inclined to decide the issue in favour of the respondent. For the reasons given above, I am of the view that participation of the four or even of all the provincial departments in the national transversal contract did not constitute administrative act as envisaged in the provisions of Promotion of Administrative Justice Act 3 of 2000. Therefore, I am not persuaded otherwise by the applicant’s submissions.

[81]   In the fourth place, the issue is whether an option given to a provincial department to participate in the national transversal contract amounts to an administrative action or not.

[82]   The procurement contract between the applicant and the respondent expired on 3 August 2016. The respondent’s evidence in this regard was undisputed. After such expiry, the provincial transversal contract was extended on a month-to-month basis.

[83]   The concept “administrative action” is defined in section 1 Act No 3 of 2000 (PAJA) as follows:

“…any decision taken, or any failure to take a decision, by—(a) an organ of state, when—… (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect, but does not include—…”

 

[84]   The application is primarily and clearly premised on the erroneous foundation that certain valid contracts existed between the applicant and the four provincial departments in the Free State Province. I have already found that no such separate contracts ever existed at any given time. The respondent contended that such contracts, even if they ever existed, were irrelevant for the purpose of adjudicating the present application. I am inclined to agree with the contention.

[85]   Barring such contracts, the only decision conceivably relevant would be the decision to embark on a procurement process. It is hard to think of any rights or even mere legitimate expectation that actually exists, in fact or in law, which could possibly have been adversely affected by the decision to procure data and mobile communication services by way of a national transversal contract.

[86]   Since the decision to embark on a procurement process does not adversely affect any rights of the applicant, it cannot be said to have direct, external and legal impact on the applicant. The decision does not fall within the defining ambit of the words administrative action. Consequently, the decision by a state organ to embark on a national procurement process in order to acquire services or goods was not by and in itself an administrative action as contemplated in section 1 Act  No 3 of 2000. It was incumbent upon the applicant to show that such a decision had adverse external repercussions in law. The applicant failed the test.

[87]   As I see it, the optional decision to participate in the national transversal contract did not constitute administrative action seeing that it lacked the elementary ingredient termed adverse external effect on any person - natural or corporate. Differently put, the optional decision to participate in the national transversal contract did not affect any vested rights of any individual. And that includes Cell C (Pty) Limited, a corporate enterprise whose previous contractual right in terms of the provincial transversal contract had virtually come to an end long before the option to participate in the national transversal contract was exercised by the accounting officers of the provincial departments in question.

[88]   It stands to reason, therefore, that neither the applicant nor other previous service providers could lawfully demand or legitimately expect to be appointed again and to be awarded a fresh contract where no further agreement exists to support such demand or to underpin such expectation. It has to be borne in mind that the applicant, who now feels aggrieved by the award of the public tender to Vodacom (Pty) Limited, was given a fair and equal opportunity of bidding just like Vodacom (Pty) Limited. However, the applicant fluffed it all. It was now too late. The applicant missed the train. For that the applicant only has itself to blame.

[89]   The statutory qualification of what act or decision constitutes administrative action, particularly when seen in conjunction with the requirement that a decision by an organ of state must have a direct and external legal effect was an attribute designed to convey the understanding that to qualify as an administrative action, a decision or an action, taken by an organ of state, has to have the capacity to affect legal rights. The two qualifications in tandem serve to emphasise that an administrative action impacts directly and immediately on individuals – Greys’ Marine Hout bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA 43; 2005 (6) SA 313 (SCA). At par [23] the court, per Nugent JA said:

“…The qualification, particularly when seen in conjunction with the requirement that it must have a 'direct and external legal effect', was probably intended rather to convey that administrative action is action that has  F the capacity to affect legal rights, the two qualifications in tandem serving to emphasise that administrative action impacts directly and immediately on individuals.”

 

[90]   On appeal against the decision of North Gauteng High Court, the Supreme Court of Appeal held that a decision for the procurement of goods and services by an organ of state lies within the heartland of the exercise of executive authority; that the executive decisions as to how limited resources are to be spent inevitably entails painful compromises; that some people might reckon that an executive decision to spend money on computer technology support systems at schools unwisely diverts those much-needed resources from more deserving projects such as the construction of roads or garbage removal systems in residential neighbourhoods; that we must constantly remind ourselves that the constitution of our land  entrusts those painfully hard to make executive decisions to elected bodies at all three tiers of government; that at every such sphere of government, the elected representative select executive functionaries  whose duty it is to carry out the chosen program of government and that it is an extremely serious matter for a court to judicially interfere with the exercise of such executive decisions - Tshwane City and Others v Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 (SCA)  

[91]   At para [43], the court went on to sound a word of caution:

“…But for it to do so by compelling the organ of state to enter into contracts and acquire goods and services that it has determined not to acquire, or at least not to acquire on the terms of a specific tender, is something that, if open to a court to do at all, should only be done in extreme circumstances. These issues are among those comprehended by the broad doctrine of the separation of powers.”

 

[92]   I am in respectful agreement with the views expressed in the previous two paragraphs. Through the above decision, the court authoritatively reminds us that an executive organ of state should not be lightly compelled by a court to enter into contracts in order to acquire goods or services that it has determined not to acquire or, at least, determined not to acquire on the terms of a specific tender. As judges we have, therefore, been cautioned. But for a court to intervene by compelling an executive organ to do so is something that, if at all open to a court to do, should only be done in extremely rare circumstances. By any stretch of imagination, this case does not fall in that category.  The courts have to be mindful that issues of this kind are among those contemplated by the broad and important doctrine of separation of state powers – Greys’ Marine, supra.

[93]   The phrase “direct and external legal effect” was imported into our law from the German Federal Law. The allusion to the words “direct legal effects” refers to administrative decisions that are final. The allusion to the words “external legal effects” refers to these administrative decisions that affect, not only the executive decision maker but also other parties. The allusion to the words “legal effects” overlaps with the requirement that rights must be adversely affected by the administrative decision complained of -  State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2017 (2) SA 63 (SCA).

[94]   Let me elucidate the principle. Coming nearer home illuminates the point better. The requirements of the concept - external legal effect - are: firstly, the decision complained of must be final. Secondly, it must have the potential capacity to have an adverse impact on the applicant’s right and the respondent’s right. In this instance, the applicant dismally failed to demonstrate a right that could potentially be adversely affected by the voluntary participation of the provincial departments concerned in the national transversal contract.

[95]  Given all the above considerations, I have reached the conclusion that the option to participate in the national transversal contract does not constitute administrative decision. This is so because such an optional decision has no direct and external legal effects on any of the applicant’s rights. The decision of the organs of state as to how to acquire services through participation in the national transversal contract constitutes no administrative action as envisaged in the relevant enabling legislation. This completes my analysis of the facts and the law in respect of the fourth issue.

[96]   In the fifth place, the issue is whether the applicant is legally entitled to the record of the administrative decision, apart from the reasons, under the provisions of PAJA.

[97]   In a letter from Honey Attorneys to the Provincial Treasury: Free State Province dated 4 May 2018, the grievance request of the applicant was ventilated. The respondent was requested to furnish the applicant with certain documents and minutes of meetings underscoring the decision complained of. All that information was requested in addition to the reasons for such a decision. What we had there were two distinct and separate requests embodied in one letter. The applicant supposed that the common denominator of the two requests was one and the same legislative foundation.

[98]   In response to the above request, the respondent intimated to the applicant’s attorneys that the applicant’s request relative to documentary information was subject to the provisions of the Promotion of Access to Information Act, colloquially known as PAIA. 

[99]   The objects of PAIA are chiefly the following:

               a)  to give effect to the constitutional right of access to

                    any information held  by the state and

     b)  to give  effect  to that  right  subject to justifiable   limitations. 

                   See sec 1 Act No 2 of 2000.

 

[100]     Section 11(1) Act No 2 of 2000 provides that a requester must be given a record of a public body if – that requester complies with all the procedural requirements of this legislation relating to a request for access to that record.

[100]      The above legislation was enacted to give effect to the constitutional right of access to information, regardless of whether such information is in the hands of a public entity or a private person. It has been authoritatively held, in accordance with the principle of constitutional subsidiarity, that claims for enforcing the right of access to information must be based on the statute, Promotion of Access to Information Act, PAIA- Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC). I pause to point out that the applicant did not go down that avenue. Which route then did the applicant follow?

[101]      Let me turn to another piece of legislation. Section 1 Act 3 of 2000 (PAJA) delineates that everyone whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may, within 90 days after the date on which that person became aware of the action or might reasonably be expected to have become aware of the action, request that the administrator concerned furnish written reasons for the action. See section 5(1) Promotion of Administrative Justice Act 3 of 2000.

[102]      Administrative reasons as envisaged in the section are not truly genuine reasons until and unless they are adequately informative. An administrator’s reasons must explain why the action was taken or not taken. Unless they do, they are otherwise better described as findings or some other information. Hoexter: Administrative Law in SA, 2^nd ed p461. An administrator’s reasons have to explain why certain administrative decisions, on which the action was based, were taken. They are supposed to ventilate the considerations that informed the action or inaction. Anything other than that constitutes information and falls outside the legislative framework of this particular statute.  

[103]      Among others, the applicant requires the respondent to give full particulars of the decisions, to give full underscoring documents thereof, to give full minutes of any meeting, and to produce all documents that were tabled before the decision-maker and to produce all documents that were tabled before any other functionary. This then is the wide scope of the applicant’s request.  Such request was irregular seeing that the applicant erroneously relied on PAJA instead of PAIA in its attempt to seek information from the respondent. Consequently the request was not in line with the principle as laid down in Mazibuko, supra.

[104]      In my view, none of the above segments of the applicant’s request has anything to do with the reasons for the administrator’s decision or action. Each one of those multiple segments has everything to do with information pertaining to the administrator’s decision and action. There is no provision made for such mode of disclosure in the legislation invoked in support of the applicant’s request. It is rather quite vivid that the legislation colloquially called PAJA is exhaustively concerned with written request for written reasons relative to and administrator’s decision or action and not an administrator’s record or information relative to an administrative decision on which the action was based.  The applicant’s reliance on the legislation that concerns reasons instead of the legislation that concerns information was fundamentally misguided. The applicant was obliged to have accordingly dichotomised its dual request. 

[105]      An inherent flaw in the applicant’s request, apart from the incorrect avenue or mode of disclosure followed, is that it is addressed to the respondent about a subject matter that substantially concerns the departmental heads in their official designation as accounting authorities of the four departments concerned. Those public officials are entirely independent of the respondent. They could not be simply disregarded on the ground that the framework agreement was facilitated and signed by the respondent alone.

[106]      I am persuaded that there was substance in the response of the respondent to the applicant’s request. The response properly construes the true nature of the request. The request was characterized by ambivalence. Although the ambivalent character of the request was correctly brought to the attention of the applicant, the applicant neglected to break it down into two small pieces and to send one piece, a request for reasons, to respondent through PAJA and to send the other piece, a request for information, to the respondent through PAIA. Those two legislations are the empowering instruments of law. The applicant ignored the fundamental distinction between them at its own peril. The respondent’s objection prompted by the applicant’s reliance on PAJA in support of its two fundamentally different requests was not a mere cosmetic technicality.  The objection was informed by the decision in Mazibuko, supra.

[107]      I still firmly hold the view that the option to participate in the national transversal contract constitutes no administrative action. When that point coupled with the nature of the applicant’s request are cumulatively considered together, then I am even more convinced that the applicant was procedurally obliged to seek recourse through PAIA as opposed to PAJA for information concerning the administrator’s action. It was never done. The applicant certainly conflated issues. In view of that conflation, the respondent was justified to disregard the fatally irregular request – Mzibuko, supra.  Also see Hoexter, op cit.

[108]      On the strength of all those considerations, I would determine the issue relative to the applicable legislation governing the request for information in favour of the respondent. The point in limine was good in law. Therefore, it was well taken. The applicant’s request for access to information under the purview of PAJA was procedurally irregular. The irregularity effectively vitiated the validity of the request and practically rendered it null and void. 

[109]      I have dealt with the preliminary points as well as the substantive merits of the application. On both fronts the respondent has emerged victorious. Although l painstakingly tried to exhaustively deal with all the issues and points raised, especially during the course of the procedural skirmishes, I have to acknowledge that I have not achieved that ambitious objective. I have not traversed certain issues at length, as I would have wanted to. Nonetheless, l have considered all the issues even though l have not pertinently addressed them all. As far as all such issues are concerned, my ruling as an empire is simply the consistent call – advantage the respondent.

[110]    In the premises the application fails. The respondent has been victorious. Therefore, the general rule of costs applies. The costs must follow success.

[111]      On behalf of the respondent it was contended that the application of Cell C Service Provider  (Pty) Ltd was stillborn; that it would be appropriate to award costs in favour of the respondent on the  punitive scale and further that such costs should include those occasioned by the employment of two counsels.

[112]    I am persuaded that the application was unmeritorious; that the employment of two counsels was justified and that the peculiar circumstances of this particular case warrant a punitive order of costs.

[113]     I accordingly  make  the   following order:

                        113.1 The application is dismissed;

113.2 The applicant is directed to pay the costs on the scale as between attorney and client;

111.3 The costs shall include those occasioned by the employment of two counsels. 

 

 

MH RAMPAI,  ADJP.

 

On behalf of applicant:      Adv S Grobler

Instructed by:                       Honey Attorneys

                                                          Bloemfontein

 

On behalf of respondent:  Adv N Snellenburg SC

With him:                              Adv PT Masihleho

Instructed by:                       The State Attorney

                                                          Bloemfontein

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