Glenulas Trading (Pvt) Ltd t/a Sitatunga Zimbabwe v Tsholotsho Rural District Council & 2 Ors

### Preamble
1
HB 157/19
HC 1651/19
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GLENULAS TRADING (PVT) LTD

t/a SITATUNGA ZIMBABWE

versus

TSHOLOTSHO RURAL DISTRICT COUNCIL

And

MATUPULA HUNTERS (PVT) LTD

And

THE PROCUREMENT REGULATORY

AUTHORITY OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 29 JULY & 17 OCTOBER 2019

Urgent Chamber application

N. Sithole for the applicant

J. Sibanda for the 1st respondent

K. Arnott for the 2nd respondent

TAKUVA J:		This is an application for an interdict wherein the applicant seeks the following relief:

“Interim relief granted

It be and is hereby ordered that:

Pending the finalisation of this matter, 2nd respondent be and is hereby prohibited from commencing or continuing safari operations or hunting activities and any activities associated there with, in the Tsholotsho North Hunting Concession Area.

Terms of the final order sought

It be and is hereby declared that:

The authority to carry out safari activities or hunting activities in the Tsholotsho North Hunting Concession area, furnished to the 2nd respondent by the 1st respondent outside the prescription of Public Procurement and Disposal of Public Assets Act [Chapter 22:23], and the Regulations thereunder, be and is hereby declared unlawful.

It be and is hereby ordered that 1st and 2nd respondents be and are hereby permanently barred from contracting in relation to the Tsholotsho North Hunting Concession without the necessary authorization of the Procurement Regulatiory Authority of Zimbabwe or outside the prescriptions of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] and the Regulations thereunder.

1st respondent be and is hereby ordered to pay the costs of this application.”

Background facts

Applicant and the 2nd respondent are safari operators who are in the business of commercial hunting in Zimbabwe.  The 1st respondent is a local governance institution that governs the affairs of Tsholotsho Rural District.  It has in terms of the Rural District Councils Act (Chapter 29:13), the power to grant leases over or in the Tsholotsho District and it is the Appropriate Authority in terms of the status granted to the Council by the Minister of Environment, Tourism and Hospitality Industry in terms of the Parks and Wildlife Act, (Chapter 20:14).

The 3rd respondent is responsible for overseeing transparent and lawful bidding processes and procedures in matters pertaining to procurement and disposal of public assets.

In accordance with powers vested in it, 1st respondent in the month of March 2019 flighted a tender more fully described as Tender No. TRDC/03/org.  Applicant, 2nd respondent and other bidders placed their bids for the hunting concession.  This was done in terms of the Public Procurement and Disposal of Public Assets Act (Chapter 22:23) and the relevant regulations.  Pursuant to this tender, 1st respondent awarded it to the 2nd respondent on 23 April 2019.  The applicant lost dismally.  He however did nothing about his poor performance.

The 1st and 2nd respondents proceeded to enter into a memorandum of agreement on 5 June 2019 granting to the 2nd respondent the exclusive right to operate hunting and photographic safaris within the Tsholotsho North Concession area of Tsholotsho District.  The agreement lists detailed terms and conditions that regulate the parties’ conduct.

Meanwhile, one of the losing bidders Lodzi Hunters set in motion a series of challenges to the tender process.  Firstly, it lodged a complaint in writing to the 1st respondent on 29 April 2019.  When that complaint was effectively resolved, it instituted urgent proceedings out of this court under HC 1144/19 which application was dismissed for want of urgency.  Unsatisfied, Lodzi Hunters then lodged an application for review on 5 June 2019 some 6 days of the challenge being lodged despite the fact that the Act upon which the application for review may be filed  provides that such an application must be filed within 5 days of the challenge being lodged with the procurement entity.  The 3rd respondent’s Reviewing Panel disregarded this anomaly and determined the application on some technicality that it raised mero motu.

The applicant clearly seeks to base its claim on the Review Panel’s determination.  That this is the case is borne out in the founding affidavit wherein it is argued that:

“Urgency

Applicant learnt on the 8th day of July 2019 that the 1st and 2nd respondent had contracted outside the prescripts of the procurement law.  The 2nd respondent is already armed with the 1st respondent’s illegally procured authority to hunt and will commence to hunt on the 27th of September 2019.  If the 2nd respondent is allowed to proceed with its hunting activities on the basis of the authority so issued … it would stand to benefit from illegalities to the prejudice of applicant and others whose efforts are to secure the same hunting rights lawfully.”

On the merits the applicant confirmed the basis of the application in paragraph 5 of its founding affidavit to be that:

“5.	(i)	1st and 2nd respondents have between themselves contracted to dispose of public assets outside the prescriptions of the procurement law.

(ii)	1st and 2nd respondents have trashed and circumvented the lawful decision of 3rd respondent’s Review Panel a decision that set aside the tender proceedings of the Tsholotsho North Hunting Concession Tender number TRDC/03/19 and ordered that the said tender be re-flighted after 1st respondent obtains the necessary

authorization.

(iii)	1st and 2nd respondent have thus contributed illegally to the dispose of (sic) public assets by private treaty in circumstances where it is intended to shut out competition by other potential or interested bidders, such that the parties (1st and 2nd respondents) intend to deal opaquely with public assets.

6.	Applicant was meanwhile awaiting an opportunity to re-tender for the Tsholotsho North Hunting Concession in a competitive, fair and transparent process as ordered by the 3rd respondent’s Review Panel …

6.1	Applicant has a commercial interest in securing the Tsholotsho Hunting tender for itself should it be successful in bidding for the same.  Applicant’s commercial interests therefore stand to be prejudiced or injured by 1st and 2nd respondents’ illegal activities.

6.2	…  There is no alternative efficacious remedy available to the applicant other than an interdict.

6.3	The balance of convenience favours that illegalities that stare the court in the face should be put to an end immediately.”

Both respondents opposed the application.  I will deal first with 1st respondent’s position.  It was argued in limine that:

the applicant’s failure to cite Lodzi Hunters in the circumstances of this case is fatal.

that the Review Panel’s decision that applicant seeks to rely on was arrived at irregularly and that 1st respondent has since challenged its propriety by way of review.

that the procedural irregularities are gross and include the following:

the total disregard of the dies induciae set out in the Act;

the panel’s decision to decide the matter on a question it raised mero muto, vitiated the entire proceedings in that section 60(4) of the Public Procurement and Disposal of Public Assets (General) Regulations SI 5 of 2018, clearly states that the decision of a Review Panel, “shall be confined to the issues raised by the application and the respondent’s reply.”

On the merits, 1st respondent submitted that the application lacks the requirements that an applicant in an application of this nature should establish, namely, a prima facie right, an allegation that applicant has suffered actual injury or has a reasonable apprehension of injury, absence of an alternative remedy, an allegation that applicant is likely to suffer irreparable harm and that the balance of convenience favours the issue of the interdict.

Second respondent opposed the application on the basis that the matter is not urgent at all.  It relied on the following reasons:

the certificate of urgency does not address the question of urgency in that Mr Ndlovu does not tell the court reasons for his belief that the matter is urgent.

the applicant has failed to establish that the matter is in fact urgent.

applicant on its own case has known about the 1st and 2nd respondents’ contract since 9 June 2019 but did nothing for more than a month.  The urgency was created by the applicant’s inaction which is not explained in either the certificate of urgency or the founding affidavit.

the applicant did not challenge the tender process at the time it freely participated in it. Now by seeking to challenge the same process months later, the applicant seeks to approbate and reprobate at the same time.

On the merits, 2nd respondent argued that the applicant has not established each of the necessary requirements for the relief it seeks.

I take the view that the points in limine do not dispose of this matter for the following reasons:

non-joinder or non-citation of a party is not fatal o13 r87 of this Court’s Rules.

as regards urgency, it was accepted that the applicant became aware of the existence of the contract on 9 July 2019 and not 9 June as previously stated.

Consequently, both points in limine have no merit and are hereby dismissed.  On the merits, the sole issue is whether or not the applicant has established the requisites of an interdict.

The law

What is sufficient to sustain a cause of action in an application for an interdict are rights which may arise out of a contract or a delict or founded in the common law.  An applicant for an interdict must show a right which is being infringed or which he apprehends will be infringed and if he does not do so, the application must fail.  The right must not be a mere moral right, it must be a strict legal right – see C B Prest, The Law & Practice of Interdicts p 52.  In L F Boshoff  Investments (Pvt) Ltd v Cape Town Municipality 1969 (2) SA 256 (c ) at 267A-F, CORBETT J (as he then was) set out the requirements of an interdictory interdict thus;

“Briefly these requirements are that the applicant for such temporary relief must show –

That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear or if not clear is prima facie established, though open to some doubt;

That, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if he ultimately succeeds in establishing his right;

That the balance of convenience favours the granting of interim relief; and

That the applicant has no other satisfactory remedy.

Briefly, those requirements are stated as;

A prima facie right;

A well grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted.

A balance of convenience in favour of the granting of the interim relief; and

The absence of any other satisfactory remedy

See also Byo Dialogue Institute v Matyatya NO & Ors 2003 (2) 79H; Min of Local Govt v Mudzuri & Anor 2004 (1) ZLR 223 (H); Marowa Diamond (Pvt) Ltd v ZRA & Ano 2007 (2) ZLR 375 (H), Airfield Investments (Pvt) Ltd v Min of Lands & Ors 2004 (1) ZLR 571 (S)

Application of the law to the facts

I take the view that the applicant is a starry-eyed busy body with absolutely no prima facie right.  In its founding affidavit, it does not assert that it has a prima facie right.  Applicant’s only stated worry is that animals which are a public asset will be hunted.  The applicant clearly has no prima facie right to the animals or to hunt the animals.  On the contrary, the applicant submitted a bid so that it may be able to hunt the same animals, which shows that it does not have a right to hunt them in the first place.  The applicant’s bid however, was unsuccessful, it came last in the tender process and therefore it obtained no right to conduct safaris and hunt in the Tsholotsho area.

This position is in stark contrast to 2nd respondent’s position which was the successful bidder.  The 2nd respondent waited until the permissible time for reviewing the tender had passed and then executed a binding contract with the 1st respondent on 5 June 2019.  Quite clearly, therefore the 2nd respondent has a prima facie right to hunt, the applicant does not.  The reliance on the review panel’s decision is untenable because that decision is not binding on the 2nd respondent.  The 2nd respondent’s position is that the panel erred by entertaining a fatally defective application.  The applicant’s counsel was informed but chose to say nothing about the basis of the challenge.  Applicant cannot latch onto a case instituted by another party to establish its right.

Irreparable harm

Applicant does not assert what irreparable harm or otherwise it would suffer were the interdict granted.  In fact, applicant argues that it would like to secure the Tsholotsho Concession for itself – see paragraph 6 of its Founding Affidavit.  Surprisingly, applicant is not praying for a mandatory interdict so that the tender process be re-run.  Instead it is merely seeking to prevent 2nd respondent from carrying out its business.  Assuming applicant’s harm is that it cannot hunt in the concession area, then this harm is not going to be avoided even if the applicant obtained its relief.  The only result would be that nobody can utilize the concession area.

Further, the applicant’s alleged harm is in no sense irreparable.  The applicant expressly concedes that its interest in the concession is “commercial” – see paragraph 6.1 of its Founding Affidavit.  Applicant merely complains that it would be able to make a profit if the tender was re-run and it won.  Applicant is not complaining about, for example, irreparable reputational damage or loss of clientele.  However loss of profit is not irreparable in that applicant can sue for damages.   For commercial interest to be protected on urgent basis the applicant would have to demonstrate that unless it is assisted it will be liquidated or employees would have to be dismissed etc.  In casu, the applicant makes no such assertion.  See Silvers’ Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 and Document Support Centre (Pvt) Ltd v Mapuvire HC 6314/06.

No well-grounded apprehension of irreparable harm has been established by applicant in this case.  Applicant even admits that it does not directly have a commercial interest in the concession.  Such commercial interest would only arise if (i) the concession was re-tendered which applicant is not seeking; and (ii) applicant was successful in a new tender – which it has already lost a few months ago.  Applicant says the action complained of “threatens injury or injures the applicant”.  This averment lacks clarity and is indicative of the fact that there is in fact no such injury.

Balance of convenience

The question is, does the balance of convenience favour that the interdict be granted or rejected?  Applicant’s harm is only commercial which can be addressed by an order for damages.  On the other hand 2nd respondent has a valid contract with the 1st respondent and obtained all the necessary permits to carry out its business in the Tsholotsho area, it has not been denied that the 2nd respondent has secured a significant number of bookings for 2019 and 2020.  If the 2nd respondent were forced to cancel these bookings it would suffer irreparable reputational damage, loss of clientele and irreparable harm to the trust and confidence.  These losses coupled with attendant huge financial losses unlike the applicant, cannot be claimed from third parties and therefore are irreparable.

By contrast, the applicant was not the successful bidder.  Accordingly, it has not invested any money in marketing the Tsholotsho Concession.  It has taken no bookings and would suffer no reputational damage or loss of clientele since it has not had to cancel any bookings.

For these reasons, I take the view that the balance of convenience is in favour of the application being rejected.  This is because there is not one single reason given by the applicant why the balance of convenience would favour the applicant.

No alternative remedy

The applicant has a number of alternative remedies that it can utilize.  The Public Procurement and Disposal of Public Asset Act [Chapter 22:23] provided the applicant with a statutory remedy if it was not satisfied with the procurement process.  This remedy has several tiers.  It commences with a challenge to the procuring entity, followed by the right to make a review application, followed by an appeal to the Administrative Court.  Applicant did not utilize these alternative remedies at all.

Further, the Procurement Act sets out stringent time – limits within which these various remedies must be utilized.  These time limits are short to avoid exactly the situation that arose now where the successful party has already acted in good faith on the basis of its successful bid and subsequent contract.  Under the Procurement Act it was incumbent on the applicant to challenge the procurement process before the 1st respondent by early May 2019.  It chose not to do so.  It now seeks to challenge the process in this court months later in a bid to circumvent the statutory process.  Applicant is free to challenge the validity of the contract between 1st and 2nd respondents’ if it believes that it is invalid.  However, applicant cannot seek to rely on the outcome of a process to which neither the applicant nor the 2nd respondent were parties.  Clearly, applicant has ample alternative remedies provided by the law.

Applicant has merely alleged that there is no alternative remedy open to it.  However, it has ignored the remedy of damages that are always open to a party who suffers loss at the hands of another, and has not stated why such remedy would not be available

For reasons outlined above, I find that the applicant has not established the requisites of an interdict.

In the circumstances, the application is dismissed with costs.

Messrs Ncube Attorneys, applicant’s legal practitioners

Job Sibanda & Associates, 1st respondent’s legal practitioners

Joel Pincus, Konson & Wolhuter, 2nd respondent’s legal practitioners