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[2023] ZAECMKHC 47
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Independents v Enoch Mgijima Municipality and Others (622/2023) [2023] ZAECMKHC 47 (11 April 2023)

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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MAKHANDA]
CASE NO.: 622/2023
In the matter between: -
THE
INDEPENDENTS

APPLICANT
and
ENOCH MGIJIMA
MUNICIPALITY

1
ST
RESPONDENT
THE MUNICIPAL MANAGER
OF THE
ENOCH MGIJIMA LOCAL
MUNICIPALITY

2
ND
RESPONDENT
LULUMZI DEVELOPMENTS
(PTY) LTD

3
RD
RESPONDENT
(Registration NO.
K[...])
JUDGMENT
NORMAN J:
[1]
The applicant is a political party registered with the Independent
Electoral Commission.
It has its registered address in Komani.  The
first respondent is Enoch Mgijima Municipality, a Municipality
established in
terms of
section 12
of the
Local Government: Municipal
Structures Act 7 of 1998
. The applicant also cited the Municipal
Manager of the first Respondent as the second respondent. The third
respondent is the successful
bidder, Lulumzi Developments (Pty) Ltd.
[2]
The applicant moved this Court on an urgent and
ex parte
basis
on 14 March 2023. It sought and was granted, interim relief,
interdicting and restraining the respondents, with immediate
effect,
from giving effect to and pursuant to the award of tender in respect
of contract number SM45/08/2022-Upgrading of Fletcher
Street, Komani,
Ward 10, contract, which was concluded with the third respondent,
pending the determination of Part B of this application.
It also
sought a costs order against the respondents. In Part B of the Notice
of Motion, the applicant seeks to review the tender
award and the
contract entered into between the first respondent and the third
respondent. The first and second respondents anticipated
the return
day and sought the discharge of the rule.
Applicant’s case
[3]
The deponent to the founding affidavit is Mr Kenneth Lisle Clark, a
businessman and
a director of companies. He is also a resident in
Komani. He stated that he heard late in January that a tender had
been awarded
and that a contract had been concluded between the
Municipality and the third respondent for the upgrading of Fletcher
Street,
Komani. He was further informed that the contract sum was in
excess of R9 Million.
That amount, according to
him “triggered alarm bells”.
He
described the length of Fletcher Street and its condition and
concluded that the section of Fletcher Street from Livingstone
Road
to Berry Street is approximately 138m long and 8m wide.
[4]
He stated that this part of the road is low priority for repair. He
also concluded
that this section of the road requires nothing more
than minor repairs and chip and spray resurfacing. He stated that the
section
of Fletcher Street from Berry Street to Frost Street is used
more frequently and is badly potholed and breaking up. It is 230m
long and 8m wide. The final section of Fletcher Street from Frost
Street to
Haig
Avenue and the entrance
to Queens College is in a reasonable condition and will not require
anything more than minor repairs and
chip and spray resurfacing.
[5]
He stated that the section of Fletcher Street between Berry and Frost
Streets is in
a very poor condition and has been in that state for
more than ten (10) years. He concluded that there can be no
suggestion that
roadworks to Fletcher Street are an urgent priority.
He stated that he endeavored to obtain further details about the
contract.
He obtained a copy of the agenda for the site handing over
meeting which occurred on 13 January 2023. The duration of the
contract
was for five (5) months and the amount tendered by the third
respondent was R9 283 536.78.
[6]
On 20 January 2023 he wrote to the Acting Municipal Manager, Mr
Donovan van Wyk requesting
further information relating to the
contract. He complained that the contract did not seem to represent
value for money. He received
no response from Mr van Wyk. On 8
February 2023 he wrote again to Mr Mkangelwa. Mr Mkangelwa responded
on the same day. He relied
on a reasonable estimate made of the work
from Mr van der Westhuyzen who estimated the costs to be R2.5 Million
for repairing Fletcher
Street. Mr van der Westhuyzen has a National
Higher Diploma in Civil Engineering which he obtained in 1984. He had
over twenty-five
(25) years of experience in civil engineering work,
he has experience as a Manager of civil and general hardrock quarry.
[7]
Based on the findings of Mr van der Westhuyzen, the applicant
concluded that, the
Municipality would not derive value for money in
the contract. It alleged that it had no alternative remedy. It stated
that it
had a right to bring the application as the applicant is a
resident of Komani. It argued that the balance of convenience favours

the granting of the interdictory relief because the contract may well
be finished by the time the review application is finalized.
It
also contended that the 3
rd
respondent may undertake work
in respect of a contract which is set aside and may suffer prejudice
in being in a position where
it will not be paid for the work
rendered.
[8]
The applicant submitted that Fletcher Street has been in a terrible
state for ten
(10) years and there can be no prejudice to the
Municipality if the project is interdicted pending the outcome of the
review. At
paragraph 61 the applicant stated ‘
the fact that
an independent evaluation of what is required to repair Fletcher
Street has shown the price to vary so greatly from
the contract price
gives rise in my submission to at least prima facie question as to
the soundness and lawfulness of the contract
awarded to the 3
rd
respondent.’
It submitted that the Municipality is in a
precarious financial position and is insolvent and it alleged that as
a result service
delivery has collapsed.
[9]
The applicant contended that the 3
rd
respondent had
started trimming trees in Fletcher Street and no earthworks had
commenced. He stated that commencement of earthworks
would prejudice
the applicant and the citizens of Komani including the 3
rd
respondent. He submitted that ‘
in my respectful submission
the applicant has demonstrated that there is at least on the face of
it an irregularity in the award
of the tender and the conclusion of
the contract for the repair of Fletcher Street to the 3
rd
defendant.’
[10]
The applicant compared the tender prices and the contract price to
the price provided by Mr van
der Westhuyzen. It is on that basis that
it concludes that the prices are awfully uncompetitive and they do
not represent value
for money. That in turn, the deponent stated,
gives rise to a
prima facie
right to obtain a review of the
contract award. When addressing irreparable harm, it stated that the
fact that R7 Million may be
irretrievably lost to the citizens of the
Municipality, R7 Million could go a long way to addressing other
service delivery issues
and it could be used to repair two (2) more
streets in Komani.
The first and second
respondents’ case
[11]
The Acting Municipal Manager Mr Aphiwe Mkangelwa deposed to the
answering affidavit.  He
stated that the adoption of the
Infrastructural Plan by the 1
st
respondent occurred during
2021. That plan was made part of the budget of the 1
st
respondent which the Council of the 1
st
respondent
adopted. In this regard the extract of the 1
st
respondent’s minutes was annexed to the answering affidavit.
The essence of the extract was that the budget for 2022/23 financial

year as revised was approved by the Council. The 1
st
respondent entered into an agreement for funding of the
Infra-structural Plan with the National Treasury.  One of the
conditions
attached to the grant from National Treasury was that once
the funds are disbursed to a Municipality they are locked into that
project. If the project is not proceeded with, the funds are to be
returned to National Treasury.
[12]
During 2020 the National Treasury approved funding and that meant
that the 1
st
respondent had to start with those processes.
The 1
st
respondent procured an engineering expert to
undertake geotechnical surveys, quantify the costs of the project,
formulate the bill
of quantities and to supervise construction of the
project in line with the norms and standards applicable to the
construction
industry.
[13]
In this regard it appointed Emzantsi Engineers (Pty) Ltd, the
estimate price for the project
came to R6.8 Million. A procurement
process was initiated and a contract
PMB
Projects JV Saracel was appointed at a contract price of
R6 691 1158.65, VAT inclusive.
The contractor
canceled the contract on the basis that they would not be able to do
the project profitably since the 2020 price
estimates had changed
drastically after the Covid 19 pandemic.
[14]
Emzantsi Engineers was approached to conduct further geo-technical
studies and furnish updated
price estimates. The 1
st
respondent had to embark on a new procurement process.
The tender process
[15]   The
notice number SCM45/08/2022 with the project name upgrading of
Fletcher Street was issued. There were 10 tenderers
who reacted to
the tender notice. The evaluation comprised of three (3) phases.
Phase 1 dealt with mandatory requirements such
as whether, for
example, a valid tax clearance certificate had been submitted. Once a
bidder complied with the mandatory requirements,
it proceeded to
Phase 2 which was for functional evaluation. This process entailed
bidders achieving a minimum of forty (40) points
for functional
requirements. It is only those bidders who obtained 40 points who
then proceeded to Phase 3 which was for evaluation
on price and
B-BBEE.
[16]
Only four (4) bidders out of ten (10) were eligible to advance to
Phase 2. Only 1 bidder achieved
the required forty (40) points for
functional requirements. That bidder was the 3
rd
respondent, it qualified to be evaluated on price and B-BBEE. The Bid
Evaluation Committee recommended the 3
rd
respondent as the
best bidder to undertake the works. The Bid Adjudication Committee
also recommended the 3
rd
respondent for appointment.
[17]
The former Acting Municipal Manager, Mr Donovan van Wyk, accepted the
recommendation of the BAC
and proceeded to appoint the 3
rd
respondent. The letter of appointment of the 3
rd
respondent shows that he was appointed on 2 December 2022 and he
accepted the appointment on 5 December 2022. He was appointed
at a
total bid price of R9 283 536.78 inclusive of VAT.
[18]
It disputed the allegations that the price was not competitive
because those allegations were
based on a face value estimates of the
work and not on scientific geo-technical surveys and bill of
quantities. It contends that
the contract had been put in place at
great expense to the 1
st
respondent. It confirmed that the
3
rd
respondent had been appointed formally and the site
had been handed over. It contends that any delays to this project
would cause
the 1
st
respondent to lose the funds advanced
to it by the National Treasury. In support of this risk the 1
st
respondent put up a letter from National Treasury which expressed
concern about the low expenditure in respect of the Municipal

Infrastructural Grant and the fact that if not spent by the end of
the financial year it may be forfeited.
[19]
The 1
st
respondent has already made a commitment to
compete all the projects in the 2020/23 financial year. It contends
that if the contractor
has equipment on site, the 1
st
respondent will have to pay for it for each day it is on site. The
interdict will render the contract more expensive and waste
of money
will be incurred. If the project is interdicted more service delivery
protests will be experienced by the 1
st
respondent. It
contends that the only victory for the applicant is simply political.
The price fluctuations and price estimates
shall have increased to 12
Million by the time the contract is awarded again next year.
[20]
They stated that as a result of failure to achieve the financial
recovery targets, the Municipal
infrastructure grant for delivery of
basic services of R40 Million was taken back by the National
Treasury. The grant for the Premier
was almost taken back in December
2021 for failure to achieve 40% target in terms of the grant
conditions. These respondents listed
what the shortcomings of the
Administrator, Mr Somana did to worsen the financial position of the
1
st
respondent. For example, by 31 October 2021, the Eskom
debt of R120 Million had increased to R700 Million.
[21]
The respondents denied any red-flags as suggested by the applicant.
They submitted that Mr van
der Westhuyzen did not have any experience
in the preparation of geo-technical surveys and studies. He denied
that Mr van der Westhuyzen’s
quotation is a reasonable yard
stick to measure scope because even the tenderers who were not
successful did not quote R2.5 Million.
They stated that there were no
grounds for review, let alone for an interdict. They contend that the
applicant had failed to demonstrate
exceptional circumstances for
stopping the Organ of State from exercising its statutory powers. The
respondents urged the Court
not to allow the second-guessing of the
findings of the experts based on a face value quotation.
[22]
They alleged that the urgency was self-created because the applicant
was aware of the contract
as early as January 2023. There is no
explanation why the application was not brought during February 2023.
They contend that the
applicant has failed to demonstrate a
prima
facie
right or establish that a balance of convenience favours it
as opposed to the respondents. These respondents contended that there

are no prospects of success on review.
[23]
The 1
st
respondent also relied on the confirmatory
affidavit of Mr Sandile Kunene, a professional Civil Engineer who
confirmed that Emzantsi
Engineers was engaged by the 1
st
respondent in the process of site assessment, geo-technical studies,
land surveys, compilation of design reports, project drawings
and
Bill of quantities. Mr Kunene confirmed that the price estimates
provided are evidence based and are an outcome of a rigorous

verification process which was overseen by him. Emzantsi assisted in
the tender preparation specifications. He confirmed that the

estimated tender price was R9.8 million. He further confirmed that
the site was given to the contractor on 13 January 2023. He
further
confirmed that if there were delays, any standing time would be paid
for by the 1
st
respondent. This would result in punitive
interest which must be paid by the Municipality. That interest cannot
be charged from
the project funding because the funding is
re-imbursed only for the payment of costs incidental thereto.
Third respondent’s
case
[24]
The 3
rd
respondent also filed an answering affidavit which
was deposed to by one Ongama Mponco. The 3
rd
respondent
became aware of the order against it after it had been granted. It
was granted leave to anticipate the
rule nisi
on 72 hours’
notice. The application and an order was served on the 3
rd
respondent on site on 15 March 2023. He stated that the tender notice
required a CIDB grading of 4CE or higher. The grading of
4 CE refers
to a contractor capable of performing a contract with a maximum value
of R6.5 Million. The 3
rd
respondent had a grading of 5CE
which is a grading that the 3
rd
respondent is capable of
performing a contract with a value of R10 Million.
[25]
He attached the
completed bill of quantities
which reflected the bid price to be R9 283 536.78.
The 3
rd
respondent’s bid was R583 593.38 less
than the engineers estimate for the tender. He confirmed the
acceptance of the
bid and its award to it. He contended that the 3
rd
respondent was correctly awarded the tender in terms of section 217
of the Constitution and had accepted that appointment on 5
December
2022. He confirmed that approximately 20% of the tender had been
performed by the 3
rd
respondent at the time of the
interdict.
[26]
He listed factors which are causing prejudice to it as a result of
the interim interdict, namely,
personnel that had been hired and the
costs thereof amounting to R70 000 per month; the 3
rd
respondent had paid for insurance for the tender from AC&E which
is from 14 December 2022 until 15 May 2023; it had obtained
and paid
for the issuing of a guarantee by Maadima for the tender at a cost of
R47 311.10. The guarantee is only valid for
six (6) months from
date of issue. It had sourced a plant and equipment from Mlayiza
Trading Construction and a standing fee of
R11 000 per day is
payable to Mlayiza. He denied that the tender was for repairs. He
avers the tender was for upgrading Fletcher
Street and the bill of
quantities detailed the works to be done. The 3
rd
respondent’s tender was substantially less than that of the
engineer’s estimates.
[27]
He referred to the bill of quantities which showed, amongst others,
that the entire road surface
of Fletcher Street was to be excavated
and re-constructed which included drains and culverts. The current
paving of stone had to
be replaced with concrete
kerbing.
He contends that the upgrade of Fletcher Street has been in
the pipeline for an extended period and should be completed. He
prayed
for the rule to be discharged.
Applicant’s
reply
[28]
In reply, the applicant attempted to analyze the costs on the bill of
quantities and suggested
that the calculations would be R3 Million
less. At the hearing the 1
st
respondent filed an
explanatory affidavit deposed to by Mr Zolile Vumazonke, who is
employed by the 1
st
respondent as a Legal and Compliance
Manager. He stated that upon his reading of the replying affidavit,
he noticed that he had
erroneously sent to the attorneys of the 1
st
respondent an incorrect first draft of the bill of quantities which
had been formulated by the consulting engineers. He explained
the
error as genuine and had resulted from the fact that at the time of
sending the information he was working on other matters
that were
also urgent.
[29]
He attached the correct bill of quantities from the contract and
apologised to the Court for
the mistake. He confirmed the bill of
quantities forming part of the tender document are consistent with
those filed by the 3
rd
respondent. The court allowed the
filing of the correct bill of quantities and afforded the applicant
time to consider the bill
of quantities with its experts, as
requested. The matter was accordingly postponed to Thursday, 6 April
2023 at 11h15 for hearing.
The applicant filed a further replying
affidavit dealing with the explanatory affidavit of Mr Vumazonke. It
contends that the contract
price was inflated and so was the scope of
the work. It relies on what was conveyed to it by Mr van der
Westhuyzen that the unit
rates were excessive and that the bill of
quantities are wholly inaccurate and do not represent reasonable
prices.  It prayed
for the court to confirm the rule because
should the applicant succeed on review the citizens of the
municipality and taxpayers
would have funded a project that does not
represent value for money. What became apparent was that the
criticism of the bill of
quantities was that Mr van der Westhuyzen
through Mr Clark was of the view that certain items should cost a
certain amount of money
instead of what was on the bill of
quantities.
Applicant’s
legal submissions
[30]
Mr Brown submitted that the applicant has shown the irregularities
that would warrant the setting
aside of the tender award
.
He submitted that when there is an allegation of irregularity the
Court will determine whether such irregularity occurred and
to
determine whether it constitutes a ground of review. In this regard
he relied
on
All
Pay Consolidated Investments Holdings (Pty) Ltd v Chief Executive
Officer, South African Security Agency and Others
[1]
.
He submitted that where the applicant has established a
prima
facie
case, and the right is founded on the Constitution, he argued, the
applicant would have established its right to the requisite
standard.
He submitted that in this case the Municipality has not fulfilled its
obligations
to
litigate honourably and relied for this submission on
Mlatsheni
v Road Accident Fund
[2]
.
He
submitted that this court should confirm the Rule.  He argued
that if the Rule Nisi is not confirmed, the inflated contract
sum
would have been dissipated and the review would have no practical
effect because the effects and consequences cannot be undone.
In this
regard he relied on
Tshwane
City  v Afriforum
[3]
,
where the Constitutional Court dealt with irreparable harm.
First and Second
respondents
[31]
Mr Maswazi submitted that the urgency of the matter was self –
created. In this regard
he referred to the letter from the applicant
dated 9 February 2023 but it only approached Court on
27
February 2023. He submitted that the applicant’s reliance on
PAJA was misplaced because applicant is neither a tenderer
nor a
competitor and therefore had failed to satisfy certain requirements,
namely, that the decision adversely affected its rights,
that the
decision has had a direct and external effect on it and that the
decision does not fall under any of the exclusions in
PAJA.  He
argued that this review maybe properly categorized as a legality
review and not under PAJA.  He submitted that
the review court
has to walk the steps that the decision maker walked when making a
decision. The report of Mr van der Westhuyzen
was not before the
decision maker, he argued, therefore the prospects of success on
review are nil. He submitted that the applicant
is not entitled to
the protection that an interdict offers only for it to pursue a cause
that is worthless.
[32]
Relying on the
Outa principle,
he argued that section 153 of
the Constitution entrenches the constitutional sovereignty of the
Municipality and an interdict against
it must be granted under
exceptional circumstances and in the clearest of cases. He submitted
that the issue raised by the applicant
is about the bill of
quantities. He directed the court to the list of the ten bidders and
the prices they offered. He submitted
that they were way above the
2,5 million suggested by the applicant. He submitted that the
applicants have failed to meet the
Plascon Evans
standard. He
submitted that the respondents’ version is explained by experts
and that version is adequate enough for it to
be accepted by the
court.  If the version of the respondents cannot be rejected
then the applicant cannot succeed. The version
of the respondents
created serious doubt on the applicant’s version and the relief
sought should be refused. He further submitted
that the court cannot
find on the facts of this case that the decision was
unconstitutional. He concluded that there is no basis
to confirm the
interim relief and it should be discharged with costs.
Third
respondent’s submissions
[33]
Ms Watt submitted that the applicant’s alleged clear right can
only emanate from section
217 of the Constitution which deals with
the procurement system. She submitted that the procurement process in
the tender in question
was fair, equitable, transparent and
competitive as can be seen from the bids received and the
adjudication thereof. She submitted
that the applicant’s
complaint is only directed at whether the award was cost effective.
The bid was awarded to the bidder
that scored the highest points and
that bidder was the 3
rd
respondent.
[34]
Its bid was substantially cheaper than the 1
st
respondent’s engineers estimate and was the only bid that was
entitled to be adjudicated in terms of price and B-BBEE. She

submitted that the quotation from Mr van der Westhuyzen cannot pass
muster in circumstances in which it is not in terms of the
bill of
quantities. In any event, she submitted that the 3
rd
respondent’s bid was substantially less that the 1
st
respondent’s engineers estimate. There is no irregularity that
was identified or that is relied upon by the applicant in
its
application.
[35]
She submitted that the applicant has not proved a right as alleged.
Addressing the issue of irreparable harm, she
submitted that the
allegation of irreparable harm is that the money spent on the tender
would be ‘
lost for the benefit of
the citizens of the Municipality’
.
She submitted that there is no irreparable harm in circumstances in
which the funding for the tender emanates from the National
Treasury
and is not being funded by the 1
st
respondent. There is irreparable harm to the 1
st
and 3
rd
respondents if the interdict remains in place as the funding for the
tender is at risk of being lost. She submitted that the balance
of
convenience favours the discharge of the interdict. The 3
rd
respondent has performed approximately 20% of the tender and is ready
to proceed with the completion of the tender.
[36]
She submitted that the applicant does not enjoy good prospects of
success in the review and its
review is not based on strong grounds.
She submitted that the
rule nisi
granted on 14 March 2023
should be discharged and the applicant should pay the 3
rd
respondent’s costs.
Discussion
[37]
As a starting point , the Constitutional Court in
Bato
Star Fishing ( Pty ) Ltd v  Minister of Environmental Affairs
and Tourism and Others
[4]
,
held that where a litigant relies upon a statutory provision, it is
not necessary to specify it , but it must be clear from the
facts
alleged by the litigant that the section is relevant and operative.
It is common cause that the applicant was not a dissatisfied

tenderer. It does not purport to represent any of the unsuccessful
tenderers. The applicant does not deny the fact that the upgrade
of
the Fletcher road is part of the Infrastructural Plan that had been
approved by the Council of the 1
st
respondent. The applicant’s case is premised on opinions of the
applicant and those of Mr van der Westhuyzen who, admittedly,
did not
do a geo-technical survey. Mr van der Westhuyzen is not entrusted
with the responsibility of running the 1
st
respondent. The Council of the 1
st
respondent where several political parties who represent the
communities under the municipality, deemed it appropriate to approve

the budget and the upgrade as stated by the 1
st
and 2
nd
respondents.
[38]
The applicant has stated that what triggered alarm bells was the 9
million.  The question is whether
that fact alone would
establish a legitimate ground to interfere with the tender award. The
issue of price cannot be viewed in
isolation as the applicant sought
to do. A tender award and contract price is a result of a tender
process. If there is no attack
on the procedure leading up to the
issuing of the tender, the advertisement, publication, tender
briefing processes, the evaluation
and adjudication thereof, focusing
on the price alone and ignoring the tender process as a whole, is
impermissible for the purposes
of attacking the legality of the
tender process.  The applicant is clearly on a fishing
expedition because when dealing with
the functionality phase he
stated ‘
I am informed and believe
that the tender process is often unlawfully manipulated precisely to
ensure the exclusion of tenderers.
This is an issue which can be
investigated and addressed in the review application in due course.’
This is just one of the examples where the deponent indicates that
based on his suspicions matters will be investigated.
Were
the Courts to entertain applications where people would, depending on
how they feel prices should be, rushed to Court to interdict

processes that have been put up after a lot of effort and expense as
explained by the 1
st
and 2
nd
respondents, that would, in my view, lead to unjust interference with
tender awards.
[39]
The monies that have been spent in preparation for the tender are
also tax-payers’ monies
and the Court must ensure that those
monies do not to go to waste based on speculation. In
Putco
(Pty) Ltd v MEC for Road & Transport, Gauteng & Others
[5]
;
Mudau J stated the established test that when considering a
prima
facie
right
is to take the facts averred by the applicant together with such
facts set out by the respondents that are not and cannot
be disputed
and to consider whether having regard to the inherent probabilities
the applicant should on those facts obtain final
relief in the
envisaged application. The facts set up in contradiction by the
respondents should then be considered and if serious
doubt is thrown
upon the case of the applicant, the applicants cannot succeed. The
same test applies herein.
[40]
The applicant obtained an interdict
ex
parte.
The effect of the interdict was
that it restrained the exercise of statutory powers by an organ of
State, in this instance the
1
st
respondent. In the absence of any allegations of mala
fides
Courts do not readily grant such interdicts.
[41]
The Constitutional Court in
National
Treasury & Others v Opposition to Urban Tolling Alliance &
Others (OUTA)
[6]
held:
‘
The
balance of convenience enquiry must now carefully probe whether and
to which extent the restraining order will probably intrude
into the
exclusive terrain of another branch of government. The enquiry must
alongside other relevant harm, have proper regard
to what may be
called separation of powers harm. A Court must keep in mind that a
temporary restraint against the exercise of statutory
power well
ahead of the final adjudication of a claimants case may be granted
only in the clearest of cases and after a careful
consideration
of separation of powers harm
.’(my
emphasis).
[42]
The Court must weigh up the damage, and inconvenience which the
respondents would suffer if the
interim interdict remains in place.
And on the other hand the damage and inconvenience which would be
suffered by the applicants
if the interim order is discharged.
The
fears of the 1
st
and 2
nd
respondents that the grant may be forfeited are not far-fetched. They
have put up facts to indicate that their fear is based on
facts as
they have given examples where the grant was actually taken back .
The applicant, on the other hand, has failed to put
up any facts in
support of their alleged fears.
[43]
I disagree with the submission made by Mr Brown that the applicant
established a right or that
the allegations of irregularity made
meets the review standard. The allegations of irregularity must be
based on facts and not
on suspicions and
conjecture.
The applicant failed to do so herein. A proper example is what
was pointed out by the third respondent that the applicant  in

its replying affidavit stated :  “
A residential road
would require no more than a  13 mm Cape Seal which is currently
priced approximately R110 per square me
and would be considerably
less expensive than that specified ( incorrectly)  in the bill
of quantities.”
This statement is based on the advices of
Mr van der Westhuyzen. If one has regard to the quotation submitted
by the applicant which
was prepared
by Mr van
der Westhuyzen  on behalf of his company,  Civil and
General Contractors CC, he quoted : “
3.
Re- surface area with a 19 mm cape seal.”
This
is just one of the examples that indicates that the applicant was
trying to find some fault with the bill of quantities when
there was
none.  The applicant failed to show any irregularity with the
bill of quantities or with the tender process as a
whole.  The
version of the respondents demonstrated that the tender process was
conducted in a manner that was consistent
with the provisions of
section 217 of the Constitution.
[44]
In
casu,
the respondents have stated in clear and unambiguous
terms what
would befall
the 1
st
respondent if the awarded tender is not executed within the
prescribed period. I need not repeat those as I have dealt with them,

above. Every organ of State is statutorily enjoined to determine its
preferential procurement policy and implement same with specific

goals. The 1
st
and 2
nd
respondents have dealt
with the plans that the 1
st
respondent has for upgrading
its infrastructure. It is not open to the applicant to decide that
the upgrade of the Fletcher Street
is not a priority. That
determination lies with the Council of the 1
st
respondent.
It does not lie with this Court.
[45]
Mr Brown as aforementioned relied on the
Mlatsheni
decision
that the municipality did not litigate honourably. That attack is
unjustified in the circumstances of this case. In the
Mlatsheni
matter the RAF, according to the judgment, had raised a frivolous
defence and had failed to perform the constitutional
obligations they
owed to the plaintiff diligently.  Those findings do not arise
in this case. The answering affidavit and
the correspondence that the
1
st
and 2
nd
respondents exchanged with the
applicant evinced respect and the respondents stated only facts that
were sufficient to meet the
case against them. The fact that the
incorrect bill of quantities was attached,  was sufficiently
explained , hence the court
allowed the correct ones to be put up. In
urgent applications sometimes errors occur due to the fact that
things are to be done
in haste. In any event the correct bill of
quantities was exactly the same as the one that was put up by the 3rd
respondent and
no prejudice was caused to the applicant.  Any
prejudice which might have occurred, which was not demonstrated, was
ameliorated
by the time afforded to the applicant to deal with the
bill of quantities.
[46]
In the
Tshwane City
case  relied upon by the applicant,
the Constitutional Court was dealing with an interdict that the High
Court had granted
pending a review, (instituted by Afriforum and one
Mr van Dyk,) of the City’s decision to change street names. Of
importance
is that in that judgment at para [68], Mogoeng CJ stated:
“
[68]
Sight should never be lost of the fact that courts are
not meant or empowered to shoulder all the governance
responsibilities of the South African State. They are co –
equal partners with two other arms of state in the discharge of
that
constitutional mandate. Orders that have the effect of altogether
derailing policy- laden and polycentric decision of the
other arms of
state should not be easily made. Comity among branches of government
requires extra vigilance, but obviously not
undue self- censorship,
against, constitutionally forbidden encroachments into the
operational enclosure of the other arms. This
is such a case.”
[47]   I am in
agreement with the submissions made by Mr Maswazi that there is no
basis to allow the interdict to continue
because the applicant’s
version is not only doubtful but it is unreliable and speculative and
it stands to be rejected.
[48]
Having had regard to the relevant facts, I am satisfied that this
application was ill- conceived. The applicant
failed to establish a
right that was adversely affected by the tender award. It alleged
urgency that was self- made and obtained
a drastic relief with
drastic consequences which prejudiced the respondents as they have
described in their answering affidavits.
In certain instances, courts
would come to the aid of the applicant where there are at least some
reliable facts put up which,
although open to some doubt, establish
some right that is affected. This is not one of those cases.  Even
on the merits, the
applicant failed to establish the irregularity
complained of, instead it decided to criticize unjustifiably, the
bill of quantities
and not the tender process.  In the
circumstances I find that the separation of powers harm dictates that
the interdict should
be discharged.
[49]
On the issue of costs, it is fair and just that costs should follow
the result.  However, the 1
st
respondent should bear
the costs occasioned by the postponement of the matter on 4 April
2023. It was as a result of its error
in attaching a wrong document
that the matter had to be postponed.
[50]
I accordingly make
the following ORDER:
50.1
The
R
ule
Nisi
issued
on 14 March 2023 and in particular the interim relief contained in
paragraphs 1.1, 1.2 and 2 of the aforementioned Rule Nisi
be and is
hereby discharged, with the result that Part A of the application is
dismissed.
50.2
The
Applicant be and is hereby directed to pay costs of the 1
st
,
2
nd
and 3
rd
Respondents in respect of Part A of the application, which costs
shall exclude the costs occasioned by the postponement of the
matter
on 4 April 2023.
50.3
The
1
st
Respondent be and is hereby directed to pay costs occasioned by the
postponement of the matter on 4 April 2023.
T.V
NO
RMAN
JUDGE OF THE HIGH
COURT
Matter Heard on
:           04
April 2023 & 06 April
2023
Order handed down on:
06 April 2023
Judgment delivered on
:  11 April 2023
APPEARANCES
For the Applicant:
Adv Brown
Instructed by:
Wheeldon Rushmere &
Cole
Applicant’s
attorneys
119
High Street
MAKHANDA
(MR
BRODY / Meghan/ S25503)
Email
:
Lit6@wheeldon.co.za
For
the 1
st
& 2
nd
Respondents:
Adv Maswazi
Instructed
by:
Whitesides
Attorneys
1
st
and 2
nd
Respondents Attorneys
53
African Street
MAKHANDA
(REF
: Mr Grant Barrow)
Email
: barrowsec@whitesides.co.za
For the 3
rd
Respondent:
Adv Watt
Instructed
by:
Nettletons
Attorneys
3
rd
Respondents Attorneys
118
A High Street
MAKHANDA
(REF
: Ms Ilse Pienaar)
Email
: sam@ nettletons.co.za
[1]
2014
(1) SA 604
CC at para 18.
[2]
(418/2005)
[2007] ZAECHC at 108 also
2009 (2) SA 401
(E) at para 16 and 17.
[3]
2016(6)
SA 279 CC at
para
59.
[4]
(CCT
/ 27/03)
[2004] ZACC 15
;
2004 (4) SA 490
CC, at para 27.
[5]
Case
Nos. 2021/49674 & 2021/51091 dated 7 December 2021 at para 67.
[6]
2012 (6) SA 223
CC at para 47.