Summary of Judgment

1. Introduction

This matter concerned an urgent application for an interim interdict pending the outcome of judicial review proceedings to be instituted under Rule 53 of the Uniform Rules of Court. The application was brought in the Free State High Court, Bloemfontein, and was heard on 27 July 2023 and delivered electronically on 28 July 2023.

The applicants were Mohau Molutsi Civil Works (Pty) Ltd, Tlhabo Ya Lestsatsi Trading & Projects 47 CC, and the joint venture between them. The principal respondents were Nala Local Municipality and its Municipal Manager. The third to fifth respondents were private entities associated with the tender award, including ZM & Nikiwenono Constructions CC, Tshemedi Lefika Patso (Pty) Ltd, and Tshemedi JV ZM & Nikiwenono Construction Joint Venture. The third to fifth respondents did not participate in the litigation, while the first and second respondents opposed the interim interdict.

Procedurally, the parties agreed at the commencement of the hearing that the matter was urgent, and it proceeded as such under Rule 6(12). The parties further agreed that condonation could be granted for the first and second respondents to file a further affidavit in the main application. The interim interdict was sought pending the determination of a review contemplated to be pursued as Part B of the overall application.

The dispute arose from a municipal procurement process concerning a tender for the construction of a paved road and stormwater channel along the Sebotsa and Monnamocho roads in Bothaville, Free State, and the applicants’ challenge to the award and implementation of that tender.

2. Material Facts

The Municipality advertised a tender in April 2023, identified as Tender No: NLM/TS/008/2022–2023, calling for bids for the construction of the stormwater channel (and related works described in the proceedings as the construction of a paved road and stormwater channel along specified roads). A compulsory briefing took place on 2 May 2023, and bids closed on 22 May 2023.

On or about 26 June 2023, the applicants learned that the fifth respondent had been appointed as the successful bidder. The applicants’ complaint, as articulated to the Municipality through their attorneys’ letter of 11 July 2023, was that the successful bidder (identified as Tshemedi Lefikapatso JV) had submitted a bid for R10 592 098.00, whereas the applicants had submitted a bid for R10 272 027.70.

The applicants alleged that, at the bid evaluation stage, the Municipality identified arithmetic errors in the successful bidder’s pricing and effected arithmetic corrections, changing the price from R10 592 098.00 to R10 185 969.75 (a reduction of R406 128.25). They further alleged that these corrections were made without following the applicable procedure, in that the successful bidder was allegedly not invited at the evaluation stage, adjudication stage, or prior to appointment to agree or disagree to the change in tender price.

The applicants also alleged that their tender was found responsive at evaluation stage but that, at adjudication stage, their bid was not considered: they contended that their name did not appear on the list of bidders adjudicated, and that their bid was effectively eliminated without lawful or logical reasons.

The first and second respondents denied unlawfulness and attempted to explain their actions in answering and further affidavits. However, the court treated as significant that arithmetic corrections were effected without following the applicable procedure and that the applicants were not invited to make input at evaluation, adjudication, or prior to appointment. The court expressly stated that the audi alteram partem dictum was not applied.

By the time of the urgent hearing, the court recorded as a practical reality that the fifth respondent had already taken custody of the site, and that resources might be wasted if the works continued and were later halted. The applicants had attempted an alternative step by requesting the Municipality to stop implementation pending the review, but the Municipality did not entertain that request.

The court further accepted that the project had to be finalised to serve the interest of the community, which required the dispute to be adjudicated expeditiously.

3. Legal Issues

The central question was whether the applicants had met the requirements for an interim interdict restraining the Municipality and the tender beneficiaries from proceeding with implementation of the tender pending the final determination of the contemplated review.

This required the court to determine, on the papers, whether the applicants had shown a prima facie right (even if open to some doubt) coupled to a threat of irreparable harm, whether the balance of convenience favoured interim relief, and whether there was an absence of satisfactory alternative remedy, applying the established approach to interim interdicts.

The dispute entailed a combination of the application of legal standards to facts (the interim interdict requirements) and an evaluative component (in particular, the balance of convenience and the appropriate scope and duration of interim relief in the context of a public procurement project). In addition, the matter implicated the constitutional-law context for interim interdicts affecting executive action, particularly the need to consider separation of powers concerns as described in the Constitutional Court’s jurisprudence.

4. Court’s Reasoning

The court located the governing framework for interim interdicts in the authorities it cited, particularly Webster v Mitchell 1948 (1) SA 1186 (WLD) and Setlogelo v Setlogelo 1914 AD 221, and it also relied on National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC) for the broader constitutional setting in which interim interdicts restraining governmental implementation must be approached.

Drawing from Webster v Mitchell, the court proceeded on the basis that, for interim relief, an applicant does not need to show a right on a balance of probabilities, but must show a prima facie right, though open to doubt, assessed by considering the applicant’s facts together with those respondent facts that cannot be disputed, and then evaluating contradictions and inherent probabilities. The court also emphasised that when a clear right is not shown, the balance of convenience becomes decisive.

From Setlogelo, as interpreted within the interim interdict context, the court noted the role of irreparable harm, particularly where the right is prima facie established but open to doubt, and the court must consider whether continuing the impugned conduct would cause irreparable injury to the applicant, and whether stopping it would cause irreparable injury to the other party.

The court further relied on National Treasury v Opposition to Urban Tolling Alliance to describe the “atmosphere in law” for cases of this nature, including the need to consider separation of powers when an interdict would affect executive or administrative implementation. The judgment specifically noted that, under OUTA, the Setlogelo requirements continue to apply in a constitutional democracy and that the prima facie right required is not merely the right to bring a review, but a right that will suffer imminent irreparable harm if not protected. It also recorded OUTA’s emphasis that an interdict is meant to prevent future conduct, not decisions already made, and that courts must be alert to the intrusion into executive terrain, especially where public resources and policy implementation are implicated.

On the facts, the court treated the procurement irregularity relied upon by the applicants as material. Although the Municipality denied wrongdoing and sought to explain its conduct, the court stated that arithmetic corrections were effected without following the applicable procedure and that the applicants were not invited to make input, with the result that audi alteram partem was not applied. This was treated as sufficient, at least at the interim stage, to ground the applicants’ contention of unlawful administrative action and to support the existence of a prima facie right needing protection pending review.

On irreparable harm, the court referred to the harm alleged and “averred and proven” by the applicants, namely severe financial harm linked to losing the opportunity to execute the project on their tendered amount, and the contention that, if construction continued, by the time the review was heard the project could be completed, with a “high possibility” that setting aside would become impractical. The court also accepted the applicants’ point that damages would not provide an adequate remedy because they would be confined to a damages claim and would face difficulty in establishing intentional wrongdoing to succeed in delict.

The court also considered practical and public-interest aspects relevant to the balance of convenience. It recorded as a reality that the fifth respondent had already taken custody of the site, and that continuing work only to have it stopped later could result in wasted resources. At the same time, the court accepted that the project must be finalised to serve the community’s interests, and that the dispute should therefore be resolved expeditiously.

This led to an evaluative limitation on the scope of the interim relief. The court considered it too broad for the interdict to operate pending a review without ensuring that the review was pursued within a defined period, since review proceedings could take “months; if not years,” potentially creating extensive prejudice. The court therefore crafted the interim order to include a directive that review proceedings be instituted within a specified timeframe, failing which the interim interdict would lapse automatically.

On costs, the court adopted an approach linking costs of the urgent interdict to the contemplated review proceedings: costs were directed to be costs in the review application if the review followed and was concluded, with leave to apply on the same papers to adjudicate costs if the interdict lapsed due to failure to institute the review in time.

5. Outcome and Relief

The court granted condonation for the matter to be enrolled urgently under Rule 6(12) and granted condonation for the first and second respondents to file a further affidavit under Rule 6(5)(e).

Pending the final determination of the review application to be brought under Part B, the court granted an interim interdict with immediate effect. The Municipality was interdicted from taking further steps to implement the tender, including concluding or implementing agreements with the third to fifth respondents and commencing or continuing construction. The first and second respondents were interdicted from handing over control of the site to the third to fifth respondents, and the third to fifth respondents were interdicted from implementing any agreement in respect of the tender or commencing or continuing construction.

The court ordered that the applicants must institute the review proceedings within 60 days of the order, failing which the interim interdict would lapse automatically. The parties were given leave to apply on the same papers, duly amplified, for a costs determination if the interdict lapsed; otherwise, costs were ordered to be costs in the review application.

Cases Cited

National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC).

Webster v Mitchell 1948 (1) SA 1186 (WLD).

Setlogelo v Setlogelo 1914 AD 221.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Uniform Rules of Court, Rule 6(5)(e).

Uniform Rules of Court, Rule 53.

Held

The court held that the matter was urgent and proceeded under Rule 6(12), with condonation also granted for the filing of a further affidavit by the first and second respondents under Rule 6(5)(e). It further held that interim relief was warranted pending a Rule 53 review, in circumstances where the Municipality had effected arithmetic corrections without following the applicable procedure and where the applicants were not afforded an opportunity to make input, with the result that the audi alteram partem principle was not applied.

The court granted an interim interdict restraining implementation of the tender and restraining the handover and continued control of the site to the tender beneficiaries, and restraining the tender beneficiaries from continuing construction. The interim relief was expressly made time-bound by requiring the applicants to institute review proceedings within 60 days, failing which the interdict would lapse automatically. Costs were directed to stand over for the review (or to be revisited if the interdict lapsed).

LEGAL PRINCIPLES

The judgment applied the established principles governing interim interdicts, including that an applicant must show a prima facie right (even if open to doubt), and that the assessment proceeds by considering the applicant’s version together with those respondent facts that cannot be disputed, before weighing contradictions and probabilities, as articulated in Webster v Mitchell 1948 (1) SA 1186 (WLD).

It reaffirmed that irreparable harm is a material consideration, particularly where the right asserted is prima facie but open to doubt, consistent with Setlogelo v Setlogelo 1914 AD 221. Where the right is not clear, the court must decide whether to grant interim protection by weighing irreparable harm and the balance of convenience.

In the context of interim interdicts affecting governmental implementation, the judgment adopted the Constitutional Court’s approach in National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC). This included that, while the Setlogelo requirements continue to apply in a constitutional democracy, the relevant prima facie right is not merely the right to bring a review, but a right that, if not protected, faces imminent irreparable harm. The judgment further reflected the principle that an interdict restrains future conduct rather than undoing decisions already made, and that courts must be mindful of the separation of powers implications where interim relief intrudes into executive implementation, especially in matters involving public projects and resource allocation.

Finally, the judgment illustrated that even where interim relief is justified, the scope and duration of an interim interdict may be tailored to avoid undue prejudice and delay, including by requiring that review proceedings be instituted within a defined period, failing which the interim relief will lapse.