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The first respondent admitted having contracted, claimed that this was because service delivery would otherwise be adversely affected and indicated that the procurement had taken place through the Harry Gwala Municipality. The day before the application was to be heard, a brief affidavit was delivered by the first respondent. It stated that the contract had been completed. This was the first time this had been communicated to the applicant, despite the applicant having sought the undertaking. The application was struck from the roll for lack of urgency and the applicant was ordered to pay the costs.
As mentioned, all of the parties agree that this should be done. There may, however, be an obstacle in the way of granting any of the relief sought. The order made by the Tribunal in the first award purports to set aside the award and to direct the first respondent to begin the bidding process de novo. It is necessary to determine the effect of this order. If this has legal effect, the application is moot. This is dealt with in the SCMP. The powers include the following:. If the first award has legal effect, the impugned award would already be set aside, any contract arising from it cancelled and the matter remitted to the first respondent to begin the process again.
In those circumstances, none of the relief sought in this application can be granted unless the first award has been reviewed and set aside. At what point can it be said that an award signed by the Tribunal has legal effect? If the first award has legal effect, this would have rendered Tribunal functus officio. In that case, the second award would have had no legal effect as the Tribunal would have lacked the power to issue it.
He clarified that awards are not handed down by the Tribunal as is the case of judgments of courts.
This is done by informing the parties to the appeal of the awards which have been made. The chairperson confirmed that the first award was signed by all three members of the Tribunal. As is the practice, it was then delivered to the Provincial Treasury. After that intervention, the second award was signed, delivered to the Treasury and communicated to the parties to the appeal. If this had been done, the applicant, as one of the parties, would have received a copy before finding out about it in the affidavit of the fifth respondent.
Equally clear is that the second award was distributed to the parties. It is this which ultimately gave rise to the present application. The point at which an award has legal effect must therefore be determined without reference to the SCMP. The superintendent-general the SG decided to refuse them his first decisions and instructed staff to draft letters to that effect. The letters were prepared but never signed or sent. The SG was then placed on sick leave for six weeks.
The person appointed to act in his absence approved the applications. The letter approving them was sent to the respondent.
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On his return, the SG purported to withdraw the approvals. It was common ground that the approvals were flawed because the replacement had simply followed the instructions of the MEC to do so and had not applied her own mind to the applications, as she was obliged to do. Despite the flaws in their having been granted, those approvals had to stand because they had not been reviewed and set aside.
Consequently, the question whether such appointment is valid, is to be adjudicated as at the time when the act takes place, namely at the time of promulgation. This, of course, deals with legislation governing commissions, including promulgation in the Government Gazette.
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It deals, also, with Presidential decisions which must be reduced to writing. But this does not apply to awards made by the Tribunal. These are governed by general principles. The second authority relied on in Kirland SCA, more directly applicable to the present matter, is the general proposition of Professor Cora Hoexter: .
Finality is a point arrived at when the decision is published, announced or otherwise conveyed to those affected by it. A decision is defined as:. This was held to be a mere clerical act and did not constitute administrative action which would substitute the actual decision of the council.
As can be seen, Plover's Nest is entirely distinguishable from the present matter. According to Kirland SCA, a decision only has external legal effect when communicated to those affected by it. I am in respectful agreement with this approach. Because the first award was not made known to the parties to the appeal, it had no legal effect.
The decision of the Tribunal in the first award could be revisited and changed by the Tribunal because it was not final.
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There is no dispute that it was sufficient for two of the three members to make binding decisions on the part of the Tribunal. It is accordingly the second award which has legal effect. This means that the Tribunal has not set aside the impugned decision or ordered that the bidding process begin de novo.
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As I have mentioned, the first respondent refused to establish a properly constituted Tribunal. As a result, as an alternative to the review, the applicant initially sought a mandamus to require it to do so. This is no longer persisted in due to the inordinate delays caused mostly by the obstructionist and dilatory conduct of the first respondent. I do not consider it appropriate to grant that kind of relief as a result and as a result of the considerations set out below.
In any event, the first respondent has not opposed the review relief on the basis that the applicant must exhaust this internal remedy. If successful such a review requires a declaration of unlawfulness. I deal with this because the concession is not made by the fourth respondent, even though it has not entered the lists.
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I do not propose to go into much detail. One of the requirements to qualify for being considered was previous experience in manufacturing pre-cast concrete VIPs. It put up a letter in support. It contended that this was signed by both the fourth and sixth respondents. The letter purports to appoint the fourth respondent in as a subcontractor for the contract awarded to the sixth respondent.
In it, the sixth respondent ostensibly requires the fourth respondent to manufacture five VIPs per day over three years. In its affidavit, the sixth respondent vigorously denied having sent that letter. It correctly pointed out that the letter is not on its letterhead. This is contrary to the policy of the sixth respondent. They suffered huge losses as the British concentrated fire on the chest, and the attack was temporarily stalled. Realising he was surrounded, Pulleine tried to retreat in order to save the endangered camp. This allowed the Zulu centre to advance again, and while raising the national cry of 'uSuthu' the Zulu interposed themselves between the retreating British and their camp.
Hand to hand combat ensued and the Zulu carried the day.
A detachment of British troops tried to mount a final stand at a stream two miles away, but most retreated to Rorke's Drift or fled down the Mzinyathi River with the Zulu in pursuit. The British lost 52 officers, white soldiers and black men of the Native Contingent - a third of Chelmsford's men.
Everything else left behind was carried off as booty. The Charge of the 17th Lancers at the Battle of Ulundi. One day later, a depot at Rorke's Drift was attacked against the orders of Cetshwayo, who favoured a defensive strategy. On the coast, the right column brushed aside Zulu resistance at the Nyezane river, before advancing to occupy the deserted mission station at Eshowe.
The left column was also involved in heavy skirmishing around the Hlobane mountain. When the central British collapsed at Isandlwana, however, the left and right flanking columns were left exposed. The Zulus managed to cut Colonel C. The left flank column, however, managed to remain operative. Chelmsford swiftly made his way back to Natal. The might of the British army had suffered a severe repulse and any thoughts of a quick British victory were put to rest.
On the other hand, the Zulu themselves suffered terrible casualties, and worse was to follow. After the defeat at Isandlwana British pride had to be restored, and reinforcements were sent for. Chelmsford's army advanced again into Zululand, inflicting heavy defeats on the Zulu in April at Gingindlovu, relieving Pearson's column, and at Khambula. The Zulu were now on the back foot. In July Chelmsford moved in on oNdini, and in a final onslaught known as the Battle of Ulundi, they secured an overwhelming military success.
More than 1 Zulu were killed and Cetshwayo was forced to flee for safety, until he was captured in the Ngome forest in August and exiled to the Cape. The Zulu were then instructed to return to their homesteads and resume productive activities. The British, nonetheless, were at pains to explain that the war was against the Zulu royal house.