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  • IN THE HIGH COURT OF SOUTH AFRICA NORTH GAUTENG DIVISION, PRETORIA

    D E L E T E WHICHEVER IS NOT APPLICABLE (1) REPORTABLE Y ^ / N O (2) OF INTEREST TO OTHER JUDGES Y ^ / N O (3) REVISED CASE N U M B E R : 70057 /09

    DATE: 5 October 2010

    D F S FLEMINGO S A (PTY) LIMITED APPLICANT

    V

    A I R P O R T S C O M P A N Y SOUTH A F R I C A (PTY) LTD 1 s t RESPONDENT

    BIG F IVE DUTY F R E E (PTY) LIMITED 2 n d RESPONDENT

    Judgment: MabuseJ

    T H E T E N D E R B O A R D OF A C S A 3 r d RESPONDENT

    JUDGMENT

    MABUSE J:

    1. This is an application by the Applicant to compel the First and Third Respondents to

    produce for its inspection certain documents referred to in a record filed and to permit

    the applicant to make copies of such documents and certain ancillary relief. This

    application is brought under the provisions of Rule 35(12) of the Uniform Rules of

    Court.

  • 7 0 0 5 7 / 0 9 - sn 2 J U D G M E N T

    2. The main application by the Applicant is for a review in terms of rule 53 and the

    reviewing and setting aside of the decision of the Third Respondent to award a tender

    for the operation Core Duty and Vat Free stores in the international departure and

    arrival terminals of O.R. Tambo, Cape Town and King Shaka International Airports.

    3. Initially the First and Third Respondents had filed their notice of opposition to the

    application but have since withdrawn such opposition and indicated that they would

    abide the decision of this court. Consequently, although no relief is sought against it,

    it is only the Second Respondent that opposes this application. Pending the Review

    application the Applicant has successfully applied for an interim interdict which

    prevents the First and Second Respondents from concluding any lease agreement in

    respect of the said stores at the abovementioned International Airports.

    4. The Applicant participated in a tender process for the award of a 10 year lease to the

    successful tenderer in respect of the Core Duty and Vat Free stores in the

    international departure and arrival terminals of the O.R. Tambo, Cape Town and King

    Shaka International Airports. The second respondent was, at the time of the process

    for the award of the tender, the incumbent and was, at the conclusion of the said

    tender process, the successful tenderer for the award of the 10 (ten) year lease which

    would have commenced from March 2010.

    5. The Applicant, a private company with limited liability duly registered in terms of the

    company laws of the Republic of South Africa and having its place of business at 281

    Jan Smuts Dunkeld West Centre, Hydepark in Johannesburg, has now launched a

    review application against the Respondents in which he challenges the First and Third

    Respondent's decision to award the said tender to the Second Respondent. The

    Applicant intends supplementing its founding affidavit as it is entitled to in terms of

    the provisions of Rule 53(4) and this can only be achieved if the Applicant is in

    possession of the full record of the process in which the Second Respondent became

    the successful tenderer. Accordingly, the purpose of the current application is to

    compel the First and Third Respondents to deliver to the Applicant outstanding

    documents of the complete record which will put it in a better position to augment its

    founding affidavit and to develop its grounds of review.

    6. The history of this matter commenced with the applicant serving a notice in terms of

    Rule 35(12) on the Respondents on 18 December 2009. In the said notice the

    Respondent required the First and Third Respondents to produce for inspection, and

  • 7 0 0 5 7 / 0 9 - sn 3 J U D G M E N T

    to permit it to make copies, of certain documents which have been fully set out in the

    said notice. In view of the fact that the said notice forms part of the papers I do not

    deem it necessary to repeat all the documents that have been listed by the Applicant

    in the said notice. According to the Applicant the said documents listed in the said

    notice form part of a record forming the subject matter of the review application.

    These documents are required by the Applicant for the purposes of the review

    application and are also referred to as part of the record filed on December 2008 but

    which have not been supplied. At the pain of repetition it is important to know that

    these documents are referred to as part of the record of the tender proceedings in

    which the Second Respondent became a successful tenderer. It is also important to

    know that certain documents which were referred to in paragraph 1.1 to 1.3 of the

    said notice was supplied to the Applicant on 15 January 2010.

    7. On 18 January 2010 the attorneys acting for the Applicant sent a letter to the

    attorneys acting for the First and Third Respondents in which they acknowledged

    receipt of the documents that had been served on them on 15 January 2010 and in

    which furthermore they informed the said attorneys that the record that had been

    forwarded to them was incomplete. They undertook in the same letter to contact the

    office of the First and Third Respondents in order to make arrangements for the

    inspection of the bid proposal. It is clear from the application by the Applicant that

    the First Respondent had not filed any complete record and as a result the Applicant

    contended that the First Respondent did not only refuse the Applicant its right in

    terms of Section 5(1) of the Promotion of Administrative Justice Act No. 3 of 2000 but

    had also placed the court at disadvantage by reason of the fact that the court did not

    have a complete record before it and in that situation the court will not be in a

    position to determine exactly how the administrative action, the award to the tender to

    the Second Respondent was done.

    Following the Rule 35(12) notice the Applicant's attorneys sent further correspondence

    on 8 January 2010 to the First Respondent's attorneys. In the said correspondence

    the Applicant's attorneys stated as follows:

    "In terms of paragraph 1 of (Rule 35(12) notice), we requested the complete bid proposal

    of the Second Respondent, and indicated certain documents that were omitted from

    same (without derogating from the generality of our request). Over and above the

    documents listed in paragraphs 1.1 to 1.10 of the said notice, we point out that from

    V(10) - Method of operation / Management is incomplete, in that the document

  • 70057 / 09 - sn 4 J U D G M E N T

    pertaining to customer service philosophy, goals with regard to customer service staff,

    training programme and uniforms, is not provided, as well as the inventory and cash

    control systems are not provided.

    We request you to furnish us with the omitted documents as referred to in our Rule

    35(12) notice dated 18 December 2009, within 10 (ten) court days from date of receipt

    hereof failing which we shall proceed with an application to compel"

    9. On 14 January 2010 the First Respondent's attorneys addressed a letter to the

    Applicant's attorneys in which they acknowledged that they had received a letter from

    the Applicant's attorneys of 13 January 2010 and confirmed that they would forthwith

    attend to the request contained in the said letter. In addition they requested an

    indulgence until Wednesday 20 January 2010 to supplement the record. On 15

    January 2010 the First Respondent's attorneys furnished the documents requested as

    per paragraphs 1.1, 1.2 and 1.3 of the notice and invited the Applicant to attend to

    their offices to inspect the complete bid proposals of the Second Respondent. It is

    only apposite to mention that the Second Respondent's complete bid proposals

    constitute part of the review application.

    10. In a letter dated 18 January 2010 the Applicant's attorneys informed the First

    Respondent's attorneys that the record that they had received was still incomplete.

    Marius van Staden ("Van Staden"), who deposed to the Applicant's founding affidavit,

    attended upon the office of the First Respondent's attorneys on 18 January 2010

    where he pointed out to the First Respondent's attorneys that, in further responding

    to Rule 35(12) notice of the Applicant. The First Respondent only had regard to the

    first page of the said notice. He furthermore indicated to the said attorneys that some

    of the portions of the Second Respondent's bid proposals were not made available,

    whereupon the First Respondent's attorneys undertook to supplement the record,

    take into account the second and third pages of the notice in terms of Rule 35(12) and

    also the letter dated 18 January 2010.

    11. On 18 January 2010, that is the very same date on which Van Staden had visited the

    offices of the First Respondent's attorneys, the Applicant's attorneys wrote a letter

    confirming the aforementioned visit and also the undertaking made by the First

    Respondent's attorneys. On 21 January 2010 the Applicant's attorneys wrote a letter

    to the First Respondent's attorneys in which they complained that the First

    Respondent's attorneys still had not yet complied with their Rule 35(12) notice dated

  • 70057 / 09 - sn 5 J U D G M E N T

    18 January 2010 in as much as despite their undertaking as contained in their

    correspondence of 14 Janu