South Africa High Court, Eastern Cape Local Division, Port Elizabeth: G.H. Bloem, J. while dismissing the application suggested an alternative remedy to the applicant whereas an application for order could have been instituted to either review or set aside the respondent’s decision to declare or find its bid unsuccessful.
In the instant case the respondent, the Nelson Mandela Bay Municipality in need of attorneys had invited tender.
The applicant, a firm of attorneys, submitted a tender. But, could not succeed for the reason that they failed to submit proof of indemnity insurance. The Municipality also advised that there is a remedy for the rejection. As per Section 52 of the Nelson Mandela Bay Municipality (NMBM) Supply Chain Management (SCM) Policy, a person can file a complaint within 14 days to the Accounting Officer.
Terming the rejection incorrect, the applicant objected to the SCM Policy. Saying, that the internal policies of the respondent are not in line with that of the Government i.e., Section 62(1) of the Municipal System Act, 2000.
Section 62(1): “A person whose rights are affected by a decision…written notice of the appeal and reasons to the municipal manager within 21 days…”
- Mullins SC, Counsel for the applicant sought an order that the respondent be compelled to resolve its written objection within two weeks from the date of the granting of the order that it sought. The Counsel’s submission relied on paragraphs 49 and 50 of the respondent’s supply chain management policy which stated that for resolution of disputes, objections, complaints and queries, the Accounting Officer must appoint an independent and impartial person.
After hearing the parties, the Court observed that the reliance placed on the aforesaid paragraphs by the appellant is misplaced. Those paragraphs do not give the applicant a right to claim that the respondent should resolve its written objection, as the relief sought suggests. The power of the independent and impartial person is limited to assisting the parties to resolve an objection.
A case was cited in reference to this. In Esda Properties (Pty) Ltd. v. Amathole District Municipality,  ZAECGHC 76 (18 September 2014), an independent and impartial person was described as “a person with no decision-making powers … appointed to assist the parties to resolve their dispute, acting, it would appear, as a mediator or conciliator.” Therefore, the applicant had failed to demonstrate that it has a right to claim that the respondent should be directed to resolve its written objection. [AA Solwandle Attorneys Incorporated v. Nelson Mandela Bay Municipality, Case No. 1093 of 2019, decided on 25-09-2019]