Lekhetho Ntsukunyane

THE Commercial Court has ruled in favour of a local company that sought to block the Ministry of Public Works and Transport from awarding a tender to print driver’s licenses to South African company, Muvoni Biometrics and Smart Card Solutions.

The company, Q7 (Pty) Ltd, filed an urgent application on Monday last week seeking to block the ministry from contracting Muvoni, arguing the South African firm had not bid for the project in the first place.

Advocate Tembo Lesupi, a lawyer representing Q7 in the matter, submitted before the court his client had tendered for the project but discovered through a newspaper article the tender had been awarded to Muvoni.

He cited the ministry’s Principal Secretary (PS) Majakathata Mokoena-Thakhisi, the Ministry of Public Works and Transport, its procurement unit, the Procurement Policy and Advice Division, Attorney-General Tšokolo Makhethe and Muvoni as first to sixth respondents respectively in the matter.

In the application, Q7 wanted the court to issue a directive for the respondents to show cause why the PS, ministry and its procurement unit should not be ordered to dispatch a record of the proceedings of the tender panel and the decision made to award the tender to Muvoni. The firm sought an order interdicting Mr Mokoena-Thakhisi from entering into a contract with Muvoni.

The company also wanted the court to order the PS to start the tender process all over again.

Handing down the ruling on Friday, Justice Lisebo Chaka-Makhooane said the application was opposed on the issue of urgency by the respondents. However, the judge noted it was unfortunate the respondents failed to file their opposing affidavit after filing a notice to oppose the urgency of the application.

“I must mention at the outset that unfortunately the first to fifth respondents who are the ones who are opposing this application have not filed any opposing papers except for the Notice to Oppose,” said Justice Chaka-Makhooane.

“This is fatal. Counsel for the first to fifth respondents (Advocate Mohapi) was given ample time to file their opposing affidavit, she still failed to grab the opportunity.

“Be that as it may, having heard both counsel for the applicant and for the first to fifth respondents, and having read papers filed of record the court is not convinced that the matter should be treated on an urgent basis.

“It is not fully enough for the applicant to allege in their certificate of urgency that the first respondent is on the verge of entering into a contract with the sixth respondent. What is alleged in paragraph 4.6 of the founding affidavit is unsubstantiated hearsay. The applicant ought to have mentioned the source of its information.”

The judge, however, conceded the matter deserved urgent attention given its national significance.

“Having said that, the issue of the driver’s licenses is an important national issue which should not be treated lightly. In order to do justice to this matter, I am using my discretion to allow this matter to be disposed of expeditiously.”

Justice Chaka-Makhooane also observed with concern that Advocate Mohapi had not opposed the issue of “interim interdict” as requested by Q7.

“The applicant also prays for an interim interdict. Counsel for the first to fifth respondents chose not to oppose this nor to argue either for or against this prayer. It boggles my mind why this was so. Probably the fact that they had not filed their opposing affidavit made it somewhat difficult for her. Indeed, in the absence of a different argument on the interim interdict the court is left with no choice but to consider only the applicant’s arguments.”

She further noted the interim interdict was really a court order preserving or restating the status quo pending the final determination of the rights of the parties.

“In casu the relief sought in the application is for the interim interdict pending the final determination of the application. It against this background that I make the following order; the application on urgency succeeds; the application is granted in terms of prayer one in the Notice of Motion with costs,” ruled Justice Chaka-Makhooane.

Meanwhile, evidence led in court shows on 28 April 2016, the ministry published an invitation to interested companies to tender for production of drivers’ licenses. Q7 was among the companies that showed their interest by submitting their tender documents as per the tender notice.

Advocate Lesupi noted his client can “positively affirm” Muvoni was not among the companies that submitted bids. He said they discovered on 22 July 2016 from a newspaper publication that the Ministry of Public Works and Transport had made a decision to award the contract to Muvoni.