Free State High court Judge dismisses applications brought by MEC Bulwane and KET Civils

The cat and mouse fight between Free State Police, Roads, and Transport and KET Civils is far from over.

This as Free State High Court Judge Jamela Mhlambi dismissed applications by both MEC of Police, Roads and Transport William Bulwane and KET Civils over the court order issued last year in April.

In his judgment on 5 May 2022, Mhlambi who was admitted as an attorney in 1987 dealt with an appeal by MEC and condonation by KET Civils.

Background: On 29 April 2021, the two applications under case numbers 1510/2021(brought by the first respondent as applicant) and 1640/2021(a counter-application brought by the MEC as applicant) served before me on an urgent basis. The order sought in Part A of the first respondent’s application under case number 1510/2021, read as follows:
 
“That the non-compliance with the Uniform Rules of Court be condoned and that the matter is heard as an urgent application in terms of Rule 6(12) (a).

It is declared that:
The first respondent is obligated to initiate the process to terminate all contracts concluded between the first respondent and the applicant where the applicant is a member of the panel of contractors described as the “Panel of contractors for upgrading, periodic, routine and special maintenance of all Free State roads for the department of Police, Roads, and Transport for thirty-six (36) months (8CE) and higher on an ad-hoc basis” constituted by the first respondent in 2020 under BID 06/2018/19

The applicant (MEC) was entitled to suspend further works under all contracts concluded between the first respondent (KET Civils) and the applicant according to the applicant is a member of the panel after being informed of the find of the third respondent that the constitution of the panel was irregular and in preparation for the termination contemplated in paragraph 2.1 above.
 
Pending the determination of Part B,

Directing the first respondent to suspend (save for traffic control services, the preservation of the completed works, and generally keeping the roads safe for use by the public, which services the applicant and the fourth to fifth respondents must continue to provide and the department must continue to pay them for), and interdicting the first respondent from performing in terms of, all contracts concluded by it with the applicant and the fourth to eight respondents pursuant them being the members of the panel; and
 
Interdicting the first respondent from issuing instructions (other than in respect of traffic control and preservation of the works and generally keeping the roads safe for use by the public) to the applicant and the fourth to eight respondents according to them being members of the panel to perform under the suspended contracts.
 
Directing the first respondent to provide the applicant and the fourth to eight respondents with full copies of the third respondent’s findings within five (5) days of the date of this order.
 
Granting the applicant leave to amend the relief sought in Part B and or file a supplementary affidavit in respect of such amended relief.
 
Directing all respondents who oppose Part A to pay costs of suit, jointly and severally, the one paying the other to be absolved.
 
Further and/or alternative relief.” 
 
The order sought in the counter-application under case number 1640/2021 reads as follows:

“That the non-compliance with the Uniform Rules of Court be condoned and the matter be heard as an urgent application in terms of Rule 6(12) (a).
 
That this application is heard simultaneously with the application under the case number 1510/2021 as the facts and parties are substantially the same.
 
An order in terms of section 6 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) reviewing and setting aside the decision of the applicant, acting in his capacity as the accounting officer of the applicant in appointing the first to sixth respondents on the 21st February 2019 in the panel PR&T/BID06/2018/19 for the upgrading, periodic, routine and special maintenance of all Free State road for the department of Police, Roads, and Transport for thirty-six (36) months and any contract made under this panel.

An order in terms of section 172(1)(a) of the Constitution of the Republic of South Africa, 1996, declaring that the conduct of the applicant and constituting the panel as set out hereinabove is inconsistent with the provisions of section 217 of the Constitution and is invalid to the extent of the inconsistency.
 
An order in terms of section 172(1)(b)(ii) of the Constitution of the Republic of South Africa, 1996, suspending the declaration of invalidity of the contracts emanating from the panel and any extensions thereunder until the said contract is completed.
 
An order directing any respondent opposing this application to pay the costs of this application, jointly and severally the one paying, the others to be absolved.
 
Any order just an equitable as this Honourable Court may deem fit.”  

Before handing his judgment Judge Mhlambi said.

“Both the applications for condonation and leave to appeal are based on the one incorrect fact that the consent order was not granted on 29 April 2021.

In the light of the above, there are no prospects that another court would conclude that such an order was not granted on that day.

Consequently, both applications should fail.”
 
The following order was issued:
Order:
 
The applications for condonation and leave to appeal are dismissed with costs, including the costs of two counsel where employed on behalf of the applicant, third, fourth, and fifth respondents.

While these play out in court, potholes are getting bigger and better.

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