IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
DATE: 22 JULY 2016
CASE NUMBER: 47725/15

IN THE MATIER BETWEEN:	
THE SOUTH AFRICAN RED CROSS

AIR MERCY SERVICE TRUST	Applicant

And

THE NATIONAL MINISTER OF FINANCE and 12 OTHER RESPONDENTS

First Respondent

JUDGEMENT

BAM  J

Appearances:

For the Applicant:  Adv  E van Graan SC.

For the Respondents: Adv B R Tokota SC and Adv M Gwala.

1.	On 5 July 2016 the Applicant, by way of an urgent application, applied for an interim interdict, pending a review application, restraining the First Respondent from implementing the cancellation of Contract RT79-2015 between the applicant and the First Respondent and any of the other respondents. I have had sufficient time to peruse he papers beforehand, and, after having heard arguments, I granted the application and made an order in terms of prayers 1, 2, 3 and 4 of the Notice of Motion, and added to prayer 4 that the proposed review application should be filed and served within 15 days of the date of this order. The issue of costs was reserved to be decided upon by the court hearing the review application.
1.	

2.	There were more than 40 urgent applications on the roll, and due to time constrains I indicated that the reasons for granting of the application will follow. These are the reasons.

3.	The applicant is a registered Trust and non-profit organization represented by its Trustees. On 31st August 2015 the applicant's bid for providing certain health related services, referred to as the "National Aero-Medical Service", for the province of Mpumalanga, was approved by the Bid Adjudication Committee of the Department and  accepted  by the first  respondent.  This contract,  (" the  agreement"),  was  added to the already existing contracts in respect of the provinces of Limpopo and Kwa­ Zulu Natal. The acceptance of the agreement by the Department of National Treasury caused the applicant to upgrade its services to be able to comply with the terms of the agreement. It included the purchasing of two  more  helicopters, upgraded machinery, night vision apparatus and the employment of more pilots and staff. It was a costly affair, the helicopters, for instance, cost R50 000 000 each.

4.	After about 9 months, during which period the applicant rendered the required services, Third Respondent, (Chief Director Transversal Contracting of the Department of the National Treasury), directed a letter dated 31st May 2016 to the applicant. It reads as follows:

"The award of the bid was unlawful. In the circumstances  the  National Treasury is  not  pre pared  to  perpetuate  a  contact  which  is  unlawful. Accordingly this is to advise you that the National Treasury  has  decided to cancel the contract effective from  thirty  days  of  receipt  of  this letter. Hope you find  this in order."

5.	It is clear that the applicant did not find the unilateral cancellation of the agreement
"in order."

6.	It transpired that the "unlawfulness" of the contract turned upon the issue that in respect of the initial bidding the Department failed to include any reference to, by law required, criterion concerning the  "average  number  of  hours"  provided for in Act 5 of 2000 (the Preferential Procurement Policy Framework Act). This was discovered by the Department after having received certain complaints, which resulted in the cancellation of the agreement.
1.	

7.	The bidding and the acceptance of the successful bid proceeded without the relevant information consistent with the criterion. This, according to the respondents rendered the whole bidding procedure unlawful.

8.	On behalf of the respondents the following points were raised:

(i)	The citation of the applicant was incorrect. The applicant was cited as a Trust which is not a legal persona.
(ii)	The application was not urgent.
(iii)	The cancellation of the agreement is not an administrative act which can be reviewed, but a question concerning the law of contract.
(iv)	There are no prospects of success in that the agreement is unlawful  and a nullity.

9.	Ad 8(i). (Citation of applicant).
The respondents had a valid point. However,  the  applicants  applied  for  an amendment concerning the initial citation of the applicant. This was granted in view thereof that the applicant, in the founding affidavit stated that Mr Lwazi Mboyi, the deponent to that affidavit, acted on behalf  of  the  Trustees  and  that  he was authorised to represent the applicant. The applicant was  therefore  ab initio represented  by its Trustees. The amendment  was a  mere formality.

10.	Ad 8(i). (Urgency).
The  respondents  contended  that  the  applicant  already  knew  as from  31st  May 2016
of the  cancellation  and waited  for  more than  a  month  before  enrolling the matter.
It is correct that there was relatively long period between the date of cancellation and the lodging of this application (it was served on the respondents on 15 June). However, it is clear that the applicants corresponded with the respondents up to the 10t h of June - (Email Annexure FA9 to founding affidavit, and the response - p72).
Taking into consideration all relevant facts, including the fact that the respondents represent an organ of State, I was satisfied that that applicants succeeded in making out a case for urgency.

11.	Ad 8(iii) and (iv). The issues whether the act of cancellation is reviewable and the prospects of success.
In respect of this issue I was addressed at length by counsel and referred to several decisions. I have no doubt that the issue is contentious and indeed debatable. The review  Court, however  will  eventually  also  be called  upon to  adjudicate that point.
I do not agree with counsel for the respondents' contention that the applicant's aim with the review is to remedy something of the past and not to prevent something happening in the future. On the other hand I however agree with the submission on behalf of the applicant that, eventually, a court will have to decide whether the agreement was lawful or not. That ruling will surely affect the future relationship between the parties in respect of the agreement.

12.	In this court the applicant was called upon to show that it has a clear right, that the balance of convenience favours it, and that it has no alternative remedy.

13.	I have already indicated above in par 11 that the court dealing with the review  will be called upon to decide upon the said issues.

14.	After having considered all relevant facts, and the submissions,  there  are,  in  my view, indeed certain outstanding matters of concern. They are the following:
(a)	The cancellation of the agreement was  unilateral  consequent  upon  a self­ admitted error  on the  side  of the  Department. The  lawfulness  of the cancellation is in question.
(b)	The impact of the cancellation on the applicant is serious and comprehensive.

15.	Consequently I was satisfied that:
(i)	

The balance of convenience clearly favoured the applicant. (ii)The applicant did not have an alternative remedy.
(iii)The applicant will suffer irreparable harm if the application is refused.

AJ BAM
JUDGE OF THE HIGH COURT	22 July 2016