IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 4264/2023
In the matter between:
STEAM DEVELOPMENT TECHNOLOGIES 96 Applicant
DEGREES PROPRIETARY LIMITED
and
THE MINISTER: DEPARTMENT OF PUBLIC Respondent
WORKS & INFRASTRUCTURE
___________________________________________________________________
REASONS FOR THE INTERIM INTERDICT
___________________________________________________________________
GOVINDJEE J
The Order
[1] This matter was argued on 26 January 2024. The following order was granted
on 30 January 2024:
2
1. ‘The court dispenses with the forms and service provided for in the Uniform
Rules of Court.
2. The respondent is interdicted and restrained from proceeding with the tenders:
2.1 PET28/2023: Fort Glamorgan and Mdantsane Prison: 36 months term
contract for boiler maintenance, repairs and services (‘PET28/2023’) and
2.2 PET29/2023: St Albans and Kirkwood Prison: 36 months term contract
for boiler maintenance, repairs and services (‘PET29/2023’)
pending the finalisation of the proceedings currently pending between the
parties in this court under case numbers 4175/2022 and 4176/2022 (currently
the subject of applications for leave to appeal the dismissal) and the review
proceedings in Part B, whichever concludes last, alternatively where any are
finally concluded in the applicant’s favour.
3. The respondent is directed to extend the closing date of tenders PET28/2023
and PET29/2023 indefinitely subject to paragraph 2, above.
4. The costs of this application are reserved for determination as part of the
determination of the application under Part B.
5. The reasons for this order will be furnished upon application by either party in
terms of Uniform Rule 49(1)(c).’
Background
[2] The reasons for the order follow. The dispute relates to tenders for boiler
maintenance, services and repairs at four prisons (namely, St Albans, Kirkwood, Fort
Glamorgan and Mdantsane) . Prior tenders for the services were awarded to the
applicant by the Department of Public Works and Infrastructure (‘the Department’) but
expired by effluxion of time. The Department advertised tenders for the services during
2021 (‘PET10/2021’ and ‘PET11/2021’) (‘the old tenders’) . All bids, including that of
the applicant, were declared non-responsive and the Department sought to cancel the
3
tenders. The applicant’s application to review these decisions (‘the first review’) was
dismissed with costs by Mtshabe AJ on 17 October 2023. An application for leave to
appeal against that decision was filed and is pending.
[3] Soon after that application was filed, the Department advertised two new
tenders for the same work (‘PET28/2023’ and ‘PET29/2023’) (‘the new tenders’). The
main difference is that the Department seeks to implement a new scoring policy,
seemingly adopted during July 2023. Part B of the present application is a review to
set aside the new scoring policy and its implementation in the new tenders.
[4] The applicant seeks to interdict the respondent from proceeding with the new
tenders pending both the finalisation of the legal proceedings pertaining to the first
review and the Part B review proceedings, and to extend the closing dates of the new
tenders accordingly. It presently provides the services sought to be procured by the
Department, in terms of temporary appointments on a deviation basis.
The Department’s submissions
[5] The Department notes that the applicant has been undertaking the necessary
and essential repair and maintenance work in question since the latter half of 2022.
This, according to the Department, is inherently problematic, uncompetitive and
inconsistent with s 217 of the Consti tution of the Republic of South Africa (‘the
Constitution’). It argues that the effect of granting the interim interdict will be to extend
the deviation period by a further undefined period to the sole benefit of the applicant.
In addition, the Department submits that the requirements for an interim interdict have
not been met on either basis advanced. In particular, the quest to stall the new tenders
pending the ‘finalisation’ of the first review proceedings is challenged on the basis of
an absence of a prima facie right. The new tenders, and new scoring policy, are
justified as consonant with new preferential procurement regulations and the decision
of the Constitutional Court in Minister of Finance v Afribusiness.
1 The suggestion that
consultation or a public participation process was required is criticised as erroneous ,
inapplicable and impractical.
1 Minister of Finance v Afribusiness 2022 (4) SA 362 (CC).
4
The requirements for an interim interdict
[6] This court has recently had the opportunity to consider the requirements for an
interim interdict in the context of urgent tender proceedings.2 What follows is largely a
repeat of the legal position sketched in that matter.
[7] The applicant must establish:
3
(a) that the right which is the subject-matter of the main application(s) and which
it seeks to protect by means of interim relief is clear or, if not clear, is prima
facie established, though open to some doubt;
(b) That, if the right is only prima facie established, there is a well -grounded
apprehension of irreparable harm if the interim relief is not granted and it
ultimately succeeds in establishing its right;
(c) That the balance of convenience favours the granting of interim relief; and
(d) That the applicant has no other satisfactory remedy.
[8] Even if all these requirements are met, the court still enjoys an overriding
discretion whether or not to grant the interim interdict. In cases where a clear right is
not established, there is authority going back to Van der Linden’s Institutes , and
entering our law via Setlogelo v Setlogelo in 1914, that explains the correct approach.
4
Applicants for interim relief are required to establish at least a prima facie right to relief,
even if open to some doubt. They need not establish that right on a balance of
probabilities.
[9] The oft -quoted passage from Webster v Mitchell explains the enquiry as
follows:
5
‘In the grant of a temporary interdict, apart from prejudice involved, the first question for the
Court…is whether, if interim protection is given, the applicant could ever obtain the rights he
seeks to protect. Prima facie that has to be shown. The use of the phrase “ prima facie
2 Zen JV v Department of Transport: Province of the Eastern Cape and Others [2023] ZAECMKHC 140.
3 L F Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff
Investments (Pty) Ltd 1969 (2) SA 256 (C) at 267B-E.
4 Setlogelo v Setlogelo 1914 AD 221.
5 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189-1190.
5
established though open to some doubt” indicates…that more is required than merely to look
at the allegations of the applicant, but something short of a weighing up of the probabilities
of conflicting versions is required. The proper manner of approach…is to take the facts as
set out by the applicant, together with any facts set out by the respondent which the applicant
cannot dispute, and to consider whether, having regard to the inherent probabilities, the
applicant could on those facts obtain final relie f…The facts set up in contradiction by the
respondent should then be considered. If serious doubt is thrown on the case of the applicant
he could not succeed in obtaining temporary relief…But if there is mere contradiction, or
unconvincing explanation, the matter should be left to trial and the right be protected in the
meanwhile, subject of course to the respective prejudice in the grant or refusal of interim
relief…the position of the respondent is protected because…the test whether or not
temporary relief is to be granted is the harm which will be done…’
[10] That enquiry has subsequently been refined, so that the test is now whether
the applicant should (not could) obtain final relief on those facts.6
[11] Generally, the threshold for an interim interdict in terms of a breached right or
in terms of a threat of breach is not showing the certain existence of the right. One
need only show a right, though at the level of interim relief it may be ‘open to some
doubt’.7 The prima facie right must be threatened by an impending or imminent
irreparable harm. As Moseneke DCJ held in National Treasury:8
‘The prima facie right a claimant must establish is not merely the right to approach a court in
order to review an administrative decision. It is a right to which, if not protected by an interdict,
irreparable harm would ensue. An interdict is meant to prevent future conduct and not
decisions already made. Quite apart from the right to review and to set aside impugned
decisions, the applicants should have demonstrated a prima facie right that is threatened by
an impending or imminent irreparable harm’.
[12] Irreparable harm is an element in cases where the right asserted by the
applicants, though prima facie established, is open to some doubt. In such cases, the
6 Gool v Minister of Justice and Another [1955] 3 All SA 115 (C).
7 Webster v Mitchell above n 5 at 1189 and Gool above n 6 at 688A, cited with approval in Eskom
Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others [2022] ZACC 44
(‘Eskom’) para 293.
8 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC)
(‘National Treasury’) para 50.
6
accepted test to be applied is whether the continuance of the thing against which an
interdict is sought would cause irreparable injury to the applicant. If so, the better
course is to grant the relief, but only if the discontinuance of the act complained of
would not involve irreparable injury to the respondent.
9
[13] As to the balance of convenience, Webster v Mitchell goes as far as to state
that if there is greater possible prejudice to the respondent an interim interdict will be
refused.
10 The balance of convenience enquiry must be applied cognisant of the
normative scheme and democratic principles that underpin the Constitution.11 In other
words, when a court considers whether to grant an interim interdict it must do so in a
way that promotes the objects, spirit and purport of the Constitution. 12 According to
EFF, this invariably attracts various constitutional issues into the adjudication process,
including possible issues regarding separation of powers, the constitutional duties of
the parties that may be frustrated by the order and any constitutional rights implicated
in the matter.
[14] Where legislative or executive power will be ‘transgressed and thwarted’ by an
interim interdict, it should only be granted ‘in the clearest of cases and after careful
consideration of the possible harm to the separation of powers principle’. 13 In EFF,
Khampepe J explained that a court must carefully scrutinize whether granting an
interdict will disrupt executive or legislative functions, thus implicating the separation
and distribution of power as envisaged by law.
14 It is in that instance that an interim
interdict would only be granted in ‘exceptional cases in which a strong case for that
relief has been made out’.15
9 Setlogelo above n 4 at 227.
10 Webster above n 5 at 1192.
11 National Treasury above n 8 paras 46-47.
12 EFF v Gordhan and Others 2020 (6) SA 325 (CC) (‘EFF’) para 40.
13 See National Treasury above n 8 and EFF above n 12 para 110: the standard is applicable to
constitutional matters and is triggered only where ‘the effect of the interdict is to prevent the exercise of
public power. The standard may not be invoked in a commercial or contractual matter that has nothing
to do with the exercise of public power: EFF above n 12 para 110.
14 The separation of powers doctrine, embedded in the architecture of the Constitution, requires courts
to ensure that all branches of government act within the law. It also demands that courts must refrain
from entering the exclusive terrain of the other branches of government unless the intrusion is mandated
by the Constitution itself: National Treasury above n 8 para 44.
15 EFF above n 12 para 48 and National Treasury above n 8 para 47.
7
[15] In Eskom, Madlanga J also considered National Treasury and EFF as part of
the enquiry as to the ‘balance of convenience’.16 It is useful to highlight the distinction
drawn in EFF as to the applicability of a more stringent requirement(s):
‘[58] How would an interim interdict hinder the Public Protector in the exercise of her powers,
or prevent her from exercising her functions once the report is released and in the public
domain? … The Public Protector is not rendered ineffective since the investigation has been
completed, the SARS Report has been finalised and published and the interim interdict is
sought merely to protect the prima facie rights of an applicant…
[59] While I acknowledge that OUTA is distinguishable on the facts from the present matter, it
is this very distinction that highlights the lack of prospects of success in the present case …
[60] What is evident from the above is that the interim order sought in OUTA would thwart the
executive from carrying out its statutory and budgetary duties as required by statute [to raise
revenue through tolls, a power vested by statute]. Plainly put, it would prevent the executive
from doing what it was meant to do. Here, the i nterim interdict sought is different. The Public
Protector has already performed the duties and functions that the Constitution requires of her.
As I have stated before, the SARS R eport has been completed. Her powers have been
exercised and the SARS Report has been published. The interim interdict sought in the High
Court therefore did not have the effect of subverting her constitutional powers.’
Interdict pending review
[16] It is convenient to consider this dimension of the application first. On the facts,
I have little difficulty in following the various authorities that have maintained the status
quo pending the finalisation of a review application concerning the scoring system for
the tenders in question.
17 These authorities have relied on the principle that a party in
the position of the applicant will not be able to obtain ‘pragmatic and practical’ just and
equitable relief in a pending review application in the event that a party in the position
16 Eskom above n 7 para 299. The majority indicated that a balancing exercise involving a sliding scale
was applicable: the more policy laden or polycentric the decision, the more the role this ‘factor’ must
play in influencing the outcome, and vice-versa. Affected fundamental rights would always play a critical
role in the balancing exercise: Eskom above n 7 para 303.
17 See SMEC South Africa (Pty) Ltd v South African National Road Agency SOC Ltd (unreported case
not 075024/2023) (High Court of South Africa, Gauteng Division, Pretoria) (‘ SMEC’) and H&I
Construction v SANRAL & Others (unreported case no. 1731/2023) (High Court of South Africa, Eastern
Cape Division, Gqeberha).
8
of the Department is not interdicted from implementing a new scoring system in the
interim:18
‘Relief capable of being implemented is part of the fundamental right to have disputes
adjudicated in a court of law. And this is dependent on the status quo (before the new scoring
system) being maintained.’
[17] The key question as to whether a prima facie case has been made out for
interim relief, including whether the applicant ‘should’ obtain the relief it seeks, draws
the prospects of success in the review application into the enquiry. The other
requirements for the granting of interim relief must also be established, and considered
holistically, and through the constitutional prism, as part of the process to determine
whether to exercise the discretion to interdict the new tenders.
[18] The analysis of the Preferential Procurement Policy Framework Act, 2000
19 the
Preferential Procurement Regulations, 2022 and the Broad- based Black Economic
Empowerment Act, 2003 20 (‘the BBBEE Act’) in the decisions to which I have been
referred need not be repeated. The applicant echoes the arguments advanced in those
matters. The applicant has at least established on a prima facie basis that i t enjoys
the right to participate in a tender bidding process, and to have its bids evaluated and
adjudicated with a system which is fair, lawful and constitutionally compliant. That right
is threatened by the introduction of a scoring system that seemingly failed to consider
a relevant code of good practice issued in terms of the BBBEE Act . The applicant’s
detailed submissions on the mandatory application of the Construction Sector Code,
as amended, its significance in the context of the Construction Sector Transformation
Charter and the BBBEE Act, and the contrast with the new scoring policy, have simply
been ignored by the Department in its papers and during argument. The applicant has,
for this reason alone, satisfied the requirement of a prima facie right to protect the
relief it seeks in the Part B proceedings, based on non-compliance with the applicable
legal framework for preferential procurement policy -making.
21 This bearing in mind
18 SMEC above n 17 para 12 and following.
19 Act 5 of 2000.
20 Act 53 of 2003.
21 For a comparable recent illustration of the application of similar considerations in granting an interim
interdict, see H & I Civil & Building (Pty) Ltd and Another v City of Cape Town and Others [2024]
ZAWCHC 15 paras 39 - 44.
9
that the Promotion of A dministrative Justice A ct, 2000, 22 (‘PAJA’) provides that
administrative action that was materially influenced by an error of law may be judicially
reviewed.23 No serious doubt has been cast upon the case advanced and the simple
suggestion that the new policy ‘complies with the constitutional, statutory and
regulatory framework and complies with the approach adopted by the Constitutional
Court…’ is left unsubstantiated.
[19] The other requirements for granting the interim interdict pending the review
have also been satisfied. In particular, the balance of convenience favours the
applicant, bearing in mind the constitutional underpinnings and strength of its
application. While it may be accepted, generally speaking, that it is undesirable for the
Department to be forced to contract for work on a ‘deviation’ or ad hoc basis over an
extended period of time, on the papers before me that prejudice cannot be said to
override the risks to the applicant if the new tenders are not interdicted. It may be
emphasised that the application has been launched on the narrow basis that only the
new tenders are to be interdicted, and not all tenders where the Department chooses
to adopt and implement a fresh approach to scoring. As such, any impact on the
exercise of executive power is minimised so that application of a more stringent test
appears to be unwarranted.
24
[20] As a result, it is unnecessary to determine the applicant’s point that the
Department had undertaken not to proceed with the new tenders until a date to be
extended upon the lodging of an application for leave to appeal the first review
judgment. In my view it is also unnecessary to opine as to the validity of the plethora
of other grounds of review linked to the Part B proceedings , including the detailed
submissions regarding the participation process and legitimate expectation of
consultation in respect of the new scoring policy.
22 Act 3 of 2000.
23 S 6(1)(d) of PAJA.
24 Down Touch Investments (Pty) Ltd v The South National Road Agency Soc Limited 2020 JDR 2278
(ECG) para 44.
10
Interdict pending leave to appeal
[21] It has been settled that an application for leave to appeal or the noting of an
appeal does not revive an interim order which has been discharged. 25 An applicant
whose interim order (with or without a rule nisi) was discharged would therefore be
obliged to bring a further application for an interim interdict pending the outcome of
any appeal, should it require such relief.
26 There is , however, authority, cited with
approval by Van Loggerenberg in Erasmus: Superior Court Practice,27 that s 18(1) of
the Superior Courts Act, 201328 applies to all decisions, including those dismissing an
application for judicial review. 29 Accepting that authority would seemingly on its own
suspend the cancellation of the old tender , in accordance with s 18(1) , pending the
outcome of the applicant’s application for leave to appeal.30
[22] Absent submissions on the point, I do not intend to express any firm views on
the outcome in Uitzig or its implications . I proceed on the basis that it remains
necessary to consider the requirements of an interim interdict , including the
establishment of a prima facie right , pending an application for leave to appeal . For
25 MV Snow Delta Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA) para 6.
26 See Kelly Group Ltd and Another v Solly Tshiki & Associates (SA) (Pty) Ltd and Others 2010 (5) SA
224 (GSJ) (‘Kelly Group’) para 19.
27 DE van Loggerenberg Erasmus: Superior Court Practice (OS, 2023, D-121).
28 Act 10 of 2013.
29 Uitzig Secondary School Governing Body v MEC for Education, Western Cape 2020 (4) SA 618
(WCC) (‘Uitzig’). Also see AC Cilliers, C Loots and HC Nel Herbstein and Van Winsen: The Civil Practice
of the High Courts and the Supreme Court of Appeal of South Africa (5 th Ed) (2009) ch44– p1485.
Section 18(1) states that ‘subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended pending the decision of the application or
appeal’. In this matter, the applicants had applied to the SCA for leave to appeal a High Court decision
dismissing their application to have an administrative decision, made by the respondent, set aside on
review. The MEC relied on SCA precedent that in cases where a claim or an application was dismissed,
such order was not suspended pending an appeal. Following that approach, the MEC argued that a
litigant who had lodged an application for leave to appeal and who wished to prevent the execution and
implementation of an administrative decision (pending that application for leave to appeal) was required
to apply for an interdict rather than rely on s 18(1). In holding that the opposite was true, the court
highlighted the differences between s 18(1) and the common law. The purpose of s 18(1) was to provide
protection to a litigant pending a full investigation of the matter by the court of appeal. To only suspend
decisions where orders were granted would strip a litigant in the position of the applicants of that
protection, and would unjustifiably discriminate against them. Absent an application in terms of s 18(3)
of the Superior Courts Act, 2013, s 18(1) protected the rights of the applicants and suspended the
execution and implementation of the order of the court a quo.
30 Uitzig above n 28 para 17. Also see Janse Van Rensburg v Obiang and Another 2023 (3) SA 591
(WCC); Public Protector of South Africa v Speaker, National Assembly and Others 2023 (4) SA 205
(WCC).
11
reasons that follow, I am satisfied, when considering the affidavits and the
requirements for an interim interdict in their totality, that there is a real prospect of
success on appeal and that it is appropriate in the present circumstances to grant the
relief sought.31
[23] In coming to this conclusion, it may be noted that the court enjoys jurisdiction
to grant the interim interdict considering the absence of any prior determination by this
court that the applicants do not have at least a prima facie case. 32 The judgment of
Mtshabe AJ was concerned with questions of final relief.33 Importantly, it may also be
emphasised that, unlike the situation in Granbuild and Aqua Transport, there has been
no determination of an absence of reasonable prospects of success on appeal. 34
There is therefore no need to persuade the court that a decision pertaining to an
assessment of prospects of success on appeal was wrong.
[24] In coming to this decision I am mindful of the remarks of Olsen J in Aqua
Transport:
35
‘A practice or procedure which involves another judge deciding the quality of prospects on
appeal before the judge who heard the main case has decided whether the threshold of
reasonable prospects of success on appeal is met undermines s 17(2) (a) of the Superior
Courts Act. The section reflects the fact that fairness to all parties dictates that if at all possible
the judge steeped in the case must decide the question of leave to appeal. Her or his decision
should not be pre-empted by a prior decision of another judge. In m y view, unless the
application for the interdict is brought before the judge who made the decision subject to
appeal, a glaring error on the part of the original judge must be apparent in most cases before
interim relief is granted…’
31 See the judgment of Schippers J in Quality Labels Solutions CC & Others v Head of Department of
Culture, Sports and Recreation, Mpumalanga Province, & Others [2013] ZAWCHC 193 paras 18 - 20,
cited with approval By Rogers J in Granbuild (Pty) Ltd v Minister of Transport and Public Works,
Western Cape and Another [2015] ZAWCHC 83 (‘Granbuild’) paras 33, 34. Cf Aqua Transport & Plant
Hire (Pty) Ltd v Dube Tradeport Corporation and Others [2018] ZAKZDHC 50 (‘Aqua Transport’) para
38. On the test in Aqua Transport, ‘exceptional circumstances’ would be required. Cf Kelly Group above
n 26 paras 23, 24 and 31, seemingly applying the ordinary test for a prima facie right.
32 Granbuild above n 31 para 34.
33 Ibid. Also see Kelly Group above n 26 paras 21 – 22. Cf Aqua Transport above n 31 para 35.
34 Granbuild above n 31 para 35; Aqua Transport above n 31 paras 41, 43.
35 Aqua Transport above n 31 para 43. Cf Kelly Group above n 26 para 18, assuming that leave to
appeal would be granted either by the court a quo or by the SCA.
12
[25] Considering this authority, it is perhaps unfortunate that the parties did not
arrange for this application to be heard together with the application for leave to
appeal. I am, however, mindful that the learned judge who presided in the first review
is no longer acting, so that this option may not have been feasible. This court is
regrettably now compelled to express itself on issues that may best have been
determined by the learned judge who heard the first review. Given the general
discomfort in doing so, it is perhaps fortuitous that the papers before me are such that
the applicant’s case for interdictory relief pending the leave to appeal processes
cannot be gainsaid.
[26] Section 217 of the Constitution ensures that contracts for goods or services are
procured in accordance with a system which is fair, equitable, transparent, competitive
and cost -effective. Section 33 of the Constitution guarantees the right to just
administrative action, including administrative action that is lawful, reasonable and
procedurally fair, as detailed in PAJA. On the facts set out by the applicant, it was
incorrectly scored when the old tenders were assessed and it was irrational for the
Department to have considered it to lack functional ability, particularly considering that
it had rendered the boiler maintenance services for some years without complaint.
Leaving aside the single bare averment that there are no reasonable prospects of
another court coming to a different conclusion to that of the learned judge in the first
review, that averment is left unanswered in the Department’s papers.
36 The court has
also had the benefit of applicant’s heads of argument in the first review, the
subsequent judgment in that matter and the application for leave to appeal .
Considering these documents together with the present affidavits, t here is a prima
facie basis to conclude that the applicant enjoys real prospects of success on appeal
and should obtain the primary recourse it seeks, namely to have its bid declared
responsive and to be awarded the old tenders. On these papers it has succeeded in
demonstrating a prima facie right, including a real prospect of success, to contest the
outcome of the first review within the framework of the constitutional right to just
administrative action and access to court.
36 See Bothongo Agriculture GP (Pty) Ltd v Johannesburg Water SOC Limited [2023] ZAGPJHC 246
para 56.
13
[27] That right is threatened by the new tenders and the applicant is at risk of
irreparable harm, also absent any alternative recourse, in the event that the new
tenders are not interdicted pending the likely appeal processes and run to
completion.37
[28] The same considerations in respect of possible intrusion into the realm of the
executive, as outlined above, apply and support the conclusion reached. In my view,
the present circumstances involve only limited intrusion into the exclusive terrain of
another branch of government, and correspondingly little cause for concern as to
‘separation of powers harm’.
38 The court is not required to intrude into a ‘policy laden
and polycentric decision’ of the executive, as was the case in National Treasury .39 In
any event, the fact that the harm grounding the interim interdict sought amounts to a
breach of a fundamental right to just administrative action ‘tempers the impact of what
may otherwise be too stringent a test’.
40 Furthermore, the exercise of the Department’s
powers in respect of tender awards in general is not rendered ineffective should these
particular tenders be interdicted on an interim basis. In determining the balance of
convenience, while I note the hint of prejudice to the Department in the event that the
applicant is permitted to continue to perform necessary work on a deviation basis,
there is simply no evidence that the work being performed on this basis is
unsatisfactory, overpriced or otherwise prejudicial. Any such prejudice is wholly
overtaken and outweighed by the demonstrated prejudice to the applicant if a higher
court determines that it ought to have been awarded the old tenders, in circumstances
where a new process has been concluded and a new service provider permitted to
commence with the same work.
[29] It is appropriate in these circumstances , and considering the affidavits as a
whole, for the court to exercise its discretion and grant the interim relief to the extent
requested in the notice of motion.
41 The public interest in ensuring cost -effective
tender awards, and the scrupulous utilisation of public resources, as required by the
37 Ibid paras 61-64.
38 See National Treasury above n 8 para 47. Down Touch Investments (Pty) Ltd v The South National
Road Agency Soc Limited above n 24 para 44.
39 National Treasury above n 8 para 67-8.
40 Eskom above n 7 para 302.
41 Eriksen Ltd v Protea Motors and Another 1973 (3) SA 685 (A) at 691C-G.
14
Constitution, forms part of this decision. It may also be noted that t he applicant has
committed itself, on the papers and during argument, to playing its part in expediting
the forthcoming legal proceedings , to the extent that this is a relevant consideration.
This will hopefully ensure that the ongoing provision of its services on a ‘deviation’
basis is minimised rather than extended indefinitely.
[30] Finally, it may be added that this outcome accords broadly with various recent
decisions, including Bothongo Agriculture GP (Pty) Ltd v Johannesburg Water SOC
Limited.
42 As in the present proceedings, the applicant argued successfully that the
effect of implementation of a re- advertised tender, pending a final decision in review
proceedings pertaining to an original, cancelled tender, would result in possible
mootness and the undermining of the right to approach another court to vindicate the
right to just administrative action.
43
[31] These considerations informed the decision to grant the order repeated in
paragraph 1, above.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 26 January 2024
Date of order: 30 January 2024
Reasons delivered: 16 February 2024
42 Bothongo Agriculture GP (Pty) Ltd v Johannesburg Water SOC Limited above n 36.
43 Ibid para 9.
15
Appearances:
Counsel for the Applicant: Adv JJ Nepgen
Chambers, Gqeberha
Instructed by: Joubert Galpin & Searle Attorneys
Applicant’s Attorneys
Email: jac.marais@adams.africa
C/o: Huxtable Attorneys
26 New Street
Makhanda
Email: law1huxattorneys.co.za
Counsel for the Respondent: Adv RG Buchanan SC
Chambers, Gqeberha
Instructed by: Office of the State Attorney
Respondent’s Attorneys
Email: MicBotha@justice.gov.za
C/o: Whitesides Attorneys
53 African street
Makhanda
Email: barrowsec@whitesides.co.za