Republic of South Africa

			IN THE HIGH COURT OF SOUTH AFRICA
			(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No. 1452/2010
Before:
The Hon Mr Justice Binns-Ward
In the matter between:

JT MARITZ ELECTRICAL CC t/a

and

JUDGMENT DELIVERED ON 26 APRIL 2011

BINNS-WARD J:
[1] The first applicant is the sole member of the second applicant, which is a close corporation that carries on business as an electrical contractor. Approximately eighty per cent of the second applicant's business is transacted with the municipality of the City of Cape Town. The respondent is an electrical contractor, who also undertakes work for the City. Contract work awarded by the City of Cape Town is subject to the competitive, fair, open and transparent processes mandated in terms of s 217 of the Constitution and those prescribed in terms of the applicable legislation contemplated therein, such as the Local Government: Municipal Finance Management Act 56 of 2003 and the supply chain management policies and regulations made under that Act. The respondent has certain concerns about the propriety of aspects of the participation of the applicants in the City's procurement processes. The articulation of those concerns has given rise to the current proceedings, in which the applicants seek an order finally 'interdicting the respondent from unlawfully spreading false information about the first and second applicant, the state of the of the second applicant's business or nature of work it performs". The founding affidavit and the argument addressed to the court by the applicant's counsel characterised the alleged wrong at which the prohibitory interdict that is sought is intended to be directed as the defaming of the applicants by the respondent.

[6] I shall deal in turn with the past events on which the applicants rely. [7] The first event occurred in March 2010 and revolved around an electrical installation at the Royal Road sports field in Maitland. Cape Town. The respondent had been commissioned by the City of Cape Town to undertake some emergency work at the sports field. After completing the work he discovered that the circuit breaker in the meter box was too large for the wiring it fed and that a smaller circuit breaker had to be fitted before he could safely reconnect the electrical supply. He drew this situation to the attention of the relevant City functionary, who attended a meeting on site to consider the issue. At that meeting, the respondent, who had no knowledge of the identity of the contractor responsible for the situation he had discovered, stated that he considered that the previous contractor should be responsible for bearing the costs of the required rectifying work. At the meeting with the City official at which he pointed out the problem described above the respondent also pointed out to her that the materials used in the work differed from those which the local authority had indicated should be used in the installation. He knew this because he had attended a site meeting in respect of the tender of the contract in terms of which the installation had been undertaken.

[9] There is a dispute on the papers as to what the respondent is alleged to have reported to the City official in respect of the installation. On the applicants' case, the respondent is alleged to have reported that (i) in executing the contract the second applicant had used sub-standard circuit breakers; (ii) the electrical feed to the various parts of the distribution board was not balanced and (Hi) the meter box supplied by the second applicant was not galvanised. The respondent is also alleged by the applicants to have stated, during an argument at the site as to what precisely the content of the respondent's report to the City official had been, that the first applicant and the City official were 'smokkeling'; an expression that the applicants seem to suggest denotes an allegation of collusion.
[10] The first applicant denies that the installation work in question was in any manner non-compliant with the requirements of the relevant contract, but averred that the second applicant 'nonetheless, as a gesture of good faith, repaired the complaint at no cost to its valued complaint.

[15] The events at a site meeting at Tafelsig about two months before the institution of the application - that is in about May 2010 - in which the respondent is alleged to have stated to the aforementioned van der Ross that he had asked someone in the City's procurement department to investigate the applicants for fraud are baldly stated in the founding papers and wholly disputed in the answering papers. They therefore do not afford material on which it can be found that the respondent defamed the applicants, as alleged.

These persons had expressed certain complaints and concerns about the perception they had about the applicants' preferential treatment by officials of the City and about the perceived unfairness of the operation of the City's relevant procurement procedures. The respondent testified that he believed that he had been approached in this manner because he was regarded by these other contractors as a senior colleague who might represent them. The respondent averred that he had told these contractors to stop 'nagging' him if they were not prepared to put their complaints in writing. He told them that if they reduced their complaints to writing he would take them to the City. The respondent admitted that contractors discussed issues of common interest and concern between themselves, and that in that regard issues concerning the tendering for and award of work by the City were talked about. He suggested that this happened as a matter of course. He stated, however, (at para 73 of his answering affidavit) that '(t)he impression that the Applicants attempt to create that I'm "behind" all these feelings and suspicions about them is wrong. I have never actively solicited other contractors to provide me with their written complaints. I have never actively petitioned to convince other contractors, or to convey to other contractors, that the Applicants were dishonourable or incompetent in any respect". In the circumstances, the commission by the respondent of any actionable wrong against the applicants at the Strand Pavilion or the Stephen Regan Sports Field events has not been established.
[18] Finally, it remains to consider the effect of the exchange of correspondence between the applicants' attorney and the respondent mentioned earlier. The attorney's letter alleged that during the period February 2010 to April 2010 the respondent had made the following defamatory statements about the second applicant: (i)that the quality of work performed by it was sub-standard or poor
(ii) that it uses inferior products in executing its contracts and (iii) that it colludes with
officials employed by the City of Cape Town to secure work. The context in which
the aforementioned statements were uttered was not identified in the letter. It was
stated, however, that they had been made 'to officials employed by the City of Cape
Town, other electrical contractors and staff employed by [the second applicant]'.
[19]   The only statements allegedly made to officials of the City of the Cape Town
that have been identified in the applicants* evidence with any degree of particularity
are those related to the Royal Road sports field matter described earlier. The only
statements made to other electrical contractors identified with any degree of
particularity are those mentioned earlier with reference to the Stephen Regan Sports
Field and Strandfontein Pavilion matters There is no particularity whatsoever in the
evidence concerning defamatory statements allegedly made by the respondent to
the second applicant's staff - unless by the word 'staff, the attorney meant to refer to
the second applicant's sole member. It was evident from the respondent's reply to
the applicants attorney's letter that he considered that the allegations made against
him related to the Royal Road sports field matter.  That much follows from the
manner in which the respondent dealt in his reply with the three allegations listed in
the immediately preceding paragraph of this judgment. He answered in respect of
the aforementioned allegations (i) to (iii) as follows

arrived at the site with the representative as his passenger in his vehicle, does this not seem
odd.

I have a lot more information which I can prove, so please tee! free to summons me as I have only the interest of getting to the bottom of this matters (s/c) and creating a free and transparent tender process for all 

first applicant had written the work specifications. Thus, at para 81 of his answering affidavit, the respondent averred 'I state specifically that any unfair advantage that the Applicants seem to enjoy, from the perspective of many other electrical contractors in the industry, in the context of this matter, relates to unfair advantages in that the Applicants are. for example, allowed to write the specifications and quote on the same projects '
[23] The respondent expanded on the issue of the first applicant writing the specifications of contract work for which the second applicant tendered as follows at para 97 -104 of his answering affidavit
97. There is also evidence, apparent from these Supporting Affidavits [ie. supporting answering affidavits made by certain other electrical contractors], indicating that there is a fair and reasonable impression in the industry that the First Applicant wrote the specifications on projects and the quoted on the same projects.
98. At a site meeting at the Royal Road Sports Field, about three years ago, I noticed a mistake in the tender document The scope stated that the new supply cable should run from the meter box to the pavement sidewalk, and should then be left there for the Supply Authority to join It up with their new supply cable. In my experience this was not the method employed by the Supply Authority for bringing supply to premises
99. I notified the project manager of this, and he looked at the First Applicant for assistance. The First Applicant informed all of us there at that meeting that he obtained the information from the Main's Department in Wynberg and thai he would call on them to verify the information.
100 I then indicated to the First Applicant that he should not quote on the project since he had written the specifications The First Applicant told me that I should "capitalise on my knowledge*
101. At a meeting held at the Heideveld Sports Field I noticed a similar pattern in the written specifications than in the specifications on the other site meetings that I have attended
102. I asked the project manger who the person was that wrote the specifications and he pointed to the First Applicant. I indicated to the project manager that it is not ethical or legal for the First Applicant to quote for projects if he also wrote the specifications for it. since this gave him an unfair advantage over the other participants in the tendenng process.
103. The project manager became hostile and indicated to me that there was nothing wrong with the First Applicant wnting the specifications, and that he would use any contractor to write the technical specifications for him because he was not a skilled electrician. He stated further that hi department did not have any skilled electricians that could draft a specifications document.
104. Many contractors present at this meeting heard this exchange. These contractors approached me after this meeting and were concerned and felt we should report this matter to the City. I indicated that they should let me know what they decide to do. and give me a call if they want to meet to discuss this issue Some of these contractors have deposed to supporting affidavits attached to this Answering Affidavit.

A.G. BINNS-WARD
Judge of the High Court