South Africa: North West High Court, Mafikeng

Orapa Mega Phase Trading Store 176 CC and Another v University of North-West and Another (39/2003) [2003] ZANWHC 11 (18 March 2003)

In his heads of argument and in argument before me Mr Beaton, who appeared on behalf of the applicants, abandoned the relief sought in paragraphs 1 and 2.1 of the notice of motion and relied only on the relief sought in paragraph 2.2. of the notice of motion.

GROUNDS OF REVIEW

In the founding affidavit the applicants in essence relied on agreement for their claim that they were entitled to be awarded the tender. Mr Beaton however, abandoned the reliance on contra (in my view correctly so). The relevant averments made in the founding papers with regard to contract are briefly as follows:

1. Over a period of time prior to the retrenching of the employees (the retrenchees) news letters issued by the university management and various negotiations had taken place between the university management and representatives of the then employees with regard to the proposed retrenchments.

2. In such news letters and negotiations the university informed the employees inter alia:

1. that they (the employees) should form a juristic entity which would undertake cleaning services and that the university “would certainly contract with such an entity should it at any stage in future require cleaning services”.

2. that “first option should be given to such companies in awarding contracts.”

3. that the university “would not contract with any other entities to conduct cleaning services as the premises of the (University) unless those entities were owned and operated by cleaning personnel formerly employed by the (University).”

3. The negotiations culminated in a written agreement between the university and the staff association (the latter acting on behalf of the affected employees). A copy of the letter agreement was attached to the founding affidavit and was accordingly put before me.

3. Paragraph 11 of the agreement is specifically relied upon by the applicants in the founding affidavit. It reads as follows:

RE-HIRING OF VOLUNTARY RETRENCHEES

.......................

“That in the event of the services of the retrenched employees are still needed by the university the retrenched employees be re-employed on temporary part-time, at an hourly rate which falls within his /her previous salary scale. His/her new contract should not contain any benefits.”

3. Contrary to the agreement and “the legitimate expectation” first respondent invited tenders in January 2001.

In his heads of argument and in argument Mr Beaton abandoned all reliance on contract in my view Mr Beaton’s approach is, for a number of reasons correct. In the first instance of ...... a substantial number of factual disputes with regard to what was conveyed to the applicants the negotiations leading up to the written agreement having been entered into. Secondly does the written agreement not support the applicants in their claim that first applicant (being a close corporation) would have been entitled to be given a tender “as a right” so to speak. In view of Mr Beaton’s concession in this regard, I do not deem it necessary to further attend to the terms of the.

Mr Beaton based his approach on a ...... ........ which a paraphrase (in the hope that I do not do an injustice to Counsel’s argument). On the facts that are common cause, the university’s committee, which considered the tenders, clearly was of the view that the employment of retrenchees of the university was an important factor in the consideration of the tenders. With regard to the first applicant and first respondent the committee was of the view that they were “on a similar footing ..... with regard to the employment of ex-retrenchees.” By that time second respondent had not yet employed any retrenchees, but has indicated to the committee that it “would employ” retrenchees and that the said finding of the committee (that two tenderers were on similar footing) was based on such undertaking.

2. It was not a requirement that at the time of the consideration of the tenders, the tenderers should already have employed retrenchee. In order to stress the importance of the employment of the retrenchee, Mr Beaton invited attention to the fact that two of the tenderers were eliminated after the interviews inter-alia because they did not indicated that they would employ retrenchees. It is correct that two of the four short-listed tenderers were indeed eliminated after the interviews. However the main reasons as to why they were eliminated had nothing to do with the fact that they had employed retrenchees. The one was eliminated because of its tender price seems to have so low that he did not really know what he was letting himself in for. The second tenderer was eliminated because its tender price was too high. In addition to the afore stated reasons the Vice Chancellor stated that “these two companies also did not indicates that they would employ ex-retrenchees of the university....”

Both first applicant and first respondent indicated that they would employ retrenched members of the university. In the replying affidavit (paragraph 3.3 thereof) it is stated that since the tender has been awarded to second respondent, it (second respondent) has not “employed one ex-employee of first respondent” and “accordingly, any communication by second respondent to the effect that it would employ retrenchees was fraudulent and, in so far as the tender committee or the officials concerned relied upon such communication in reaching their decision, they were dubed into it by second respondent.”

The afore-said averment relating to fraud, and contained in the replying affidavit, were not part of the founding affidavit. Mr Beaton argued that the respondents could have reacted to the averments by the filing of a further affidavit. That the respondents could have taken steps to have a further affidavit filed is of course correct. However, in my view the absence of a further affidavit does not justify an inference that the committee did not apply its mind all that it based its decision on the wrong facts.

The averment in the replying affidavit that the second respondent had defrauded the committee is not made on the basis that at the time when the second respondent had indicated to the committee that it would employ retrenchees, that information was wrong or false. The averment that second respondent defrauded the committee is based on the inference that subsequent to the tender having been awarded to the second respondent the latter had not employed any retrenchees.