THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 9697 / 2023
In the matter between:
ROYAL SECURITY CC Applicant
and
SS SALUTIONS (PTY) LTD t/a SEAL SECURITY First Respondent
TYTE SECURITY SERVICES CC Second Respondent
WESTERN CAPE PROVINCIAL GOVERNMENT Third Respondent
THE MEC FOR THE DEPARTMENT OF INFRASTRUCTURE Fourth Respondent
WESTERN CAPE PROVINCIAL GOVERNMENT
THE DIRECTOR OF ACQUISITIONS & CONTRACT Fifth Respondent
MANAGEMENT OF THE DEPARTMENT OF INFRASTRUCTURE
WESTERN CAPE PROVINCIAL GOVERNMENT
THE CHIEF DIRECTOR OF SUPPLY CHAIN MANAGEMENT Sixth Respondent
OF THE DEPARTMENT OF INFRASTRUCTURE
WESTERN CAPE PROVINCIAL GOVERNMENT
THE MEC FOR PROVINCIAL TREASURY Seventh Respondent
WESTERN CAPE PROVINCIAL GOVERNMENT
THE HEAD OF THE DEPARTMENT OF INFRASTRUCTURE Eighth Respondent
WESTERN CAPE PROVINCIAL GOVERNMENT
THE BID EVALUATION COMMITTEE OF THE Ninth Respondent
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DEPARTMENT OF INFRASTRUCTURE
WESTERN CAPE PROVINCIAL GOVERNMENT
THE BID ADJUDICATION COMMITTEE OF THE Tenth Respondent
DEPARTMENT OF INFRASTRUCTURE
WESTERN CAPE PROVINCIAL GOVERNMENT
THE DEPARTMENT OF POLICE OVERSIGHT AND Eleventh Respondent
COMMUNITY SAFETY, WESTERN CAPE
PROVINCIAL GOVERNMENT
In re the application between:
SS SALUTIONS (PTY) LTD t/a SEAL SECURITY Applicant
and
WESTERN CAPE PROVINCIAL GOVERNMENT First Respondent
THE MEC FOR THE DEPARTMENT OF INFRASTRUCTURE Second Respondent
WESTERN CAPE PROVINCIAL GOVERNMENT
THE DIRECTOR OF ACQUISITIONS & CONTRACT Third Respondent
MANAGEMENT OF THE DEPARTMENT OF INFRASTRUCTURE
WESTERN CAPE PROVINCIAL GOVERNMENT
THE CHIEF DIRECTOR OF SUPPLY CHAIN MANAGEMENT Fourth Respondent
OF THE DEPARTMENT OF INFRASTRUCTURE
WESTERN CAPE PROVINCIAL GOVERNMENT
THE MEC FOR PROVINCIAL TREASURY Fifth Respondent
WESTERN CAPE PROVINCIAL GOVERNMENT
THE HEAD OF THE DEPARTMENT OF INFRASTRUCTURE Sixth Respondent
WESTERN CAPE PROVINCIAL GOVERNMENT
THE BID EVALUATION COMMITTEE OF THE Seventh Respondent
DEPARTMENT OF INFRASTRUCTURE
WESTERN CAPE PROVINCIAL GOVERNMENT
THE BID ADJUDICATION COMMITTEE OF THE Eight Respondent
DEPARTMENT OF INFRASTRUCTURE
WESTERN CAPE PROVINCIAL GOVERNMENT
THE DEPARTMENT OF POLICE OVERSIGHT AND Ninth Respondent
COMMUNITY SAFETY WESTERN CAPE
PROVINCIAL GOVERNMENT
3
ROYAL SECURITY CC Tenth Respondent
RED ANT SECURITY CONSORTIUM Eleventh Respondent
S ISMAIL t/a ALCATRAZ Twelfth Respondent
MASIBAMBANE SECURITY SERVICES (PTY) LTD Thirteenth Respondent
UTHEMBEKILE SECURITY SERVICES CC Fourteenth Respondent
AMA SECURITY (PTY) LTD Fifteenth Respondent
SILVER SOLUTIONS 1522 CC Sixteenth Respondent
DC SECURITY (PTY) LTD Seventeenth Respondent
ENSEMBLE SECURITY Eighteenth Respondent
SECHABA PROTECTION SERVICES (PTY) LTD Nineteenth Respondent
PROSEC GUARDS CC Twentieth Respondent
SECURICAPE SERVICES (PTY) LTD Twenty-First Respondent
TYTE SECURITY SERVICES CC Twenty-Second Respondent
Coram: Gamble et Wille, JJ
Heard: 22 April 2024
Delivered: 30 April 2024
JUDGMENT
______________________________________________________________________
WILLE, J: (GAMBLE J, CONCURRING)
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Introduction
[1] The tenth respondent makes an application that the first three paragraphs of
the order handed down by t his c ourt about two months ago be implemented
immediately, pending any further appeals by the twenty-second respondent.1
[2] The twenty-second respondent wants the order not to be suspended pending
the outcome of the application for leave to appeal and the final determination of any
appeal against the order in any court going forward.2
[3] This court's order concerning the initial review application dismissed the
applicant’s application and the twenty -second respondent’s counterapplication for
judicial review. It confirmed the award by the first to ninth respondents of the tender
to the tenth respondent. The tenth respondent was due to take over and commence
the operations required under the tender contract within one calendar month of the
order date.3
[4] In addition, t he applicant and the twenty -second respondent were ordered to
hand over the security operations under the tender to the tenth respondent and do
everything necessary to enable the tenth respondent to commence with the required
security services within the stipulated timeframe.4
[5] The applicant was ordered to pay the tenth respondent’s costs for the interdict
application, which confirmed that the initial review application should not have been
chartered in the first place. After that, only the twenty-second respondent applied for
leave to appeal. This application for leave to appeal was heard along with this
urgent implementation application as a matter of practicality and to save judicial
resources.5
[6] This court recently dismissed the twenty -second respondent's application for
leave to appeal. The implementation date for handing over the security operations to
the tenth respondent was substituted and expedited. In response to this, the twenty-
second respondent has now hastily filed another application for leave to appeal ,
1 This application is chartered in terms of section 18 (3) of the Superior Courts Act, 10 of 2023. (“Act”).
2 Whether in the High Court, the Supreme Court of Appeal, or the Constitutional Court.
3 The order was granted on 21 February 2024.
4 The tenth respondent was to take over the security operations by 21 March 2024.
5 The application for leave to appeal was dismissed by this court on 24 April 2024.
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which was the trigger for the delivery of this judgment dealing with the
implementation application launched by the tenth respondent.6
Context
[7] The security tender , forming the subject of the initial review application, was
awarded to the tenth respondent nearly a year ago. Shortly after that, the applicant
instituted an urgent application for an order that, pending the final determination of a
review application , the provincial respondents be interdicted and restrained from
implementing or giving legal effect to the decision in awarding the tender to the tenth
respondent.7
[8] Essentially, to regulate the further conduct of the proceedings and, from a
practical perspective, to ensure the continuity of these vital security services, an
order was handed down in the interdict proceedings containing some of the following
terms: (a) the applicant and the twenty -second respondent would continue to render
the services which they had been providing in terms of an ext ant service level
agreement, (b) the tenth respondent would render the protection services for a
specified housing project pending the outcome of the review application and, (c)
pending the outcome of the review application, should the provincial respondents
require any further security services to be rendered at additional sites , it could
appoint, at its sole discretion, either the applicant, the tenth respondent or the
twenty-second respondent to provide such services in terms of any service level
agreements concluded with the provincial respondents.8
[9] For practical purposes, the applicant and the twenty -second respondent
continued to perform services under an impugned tender award that had been
awarded jointly to them about three years ago. Put another way, they continued to
enjoy the full benefit of the entire contract period . In addition, the applicant and the
twenty-second respondent continued to benefit from an award that had previously
been set aside for almost a year longer.9
[10] It must be emphasized that neither the provincial respondents nor the
applicant applied for leave to appeal nor for the implementation application. In
addition, the tenth respondent has taken over the security services previously
6 This application is to the Supreme Court of Appeal and was filed on 26 April 2024.
7 This was the urgent interdict application launched on 15 June 2023.
8 This order was handed down by Justice Francis in June 2023 (the “interim” order)
9 This is in terms of Francis J’s interim interdict, and by the time this application was heard,
6
rendered by the applicant in accordance with the court order granted more than two
months ago.10
Consideration
[11] The tenth respondent submitted that exceptional circumstances have been
demonstrated in this application. It also says that some of the facts relevant to the
requirements for exceptional circumstances are also pertinent to the requirements
for irreparable harm. I agree with both submissions. I say this because the twenty -
second respondent has had the windfall of a two-year contract, which was unlawfully
awarded, and continues to reap these benefits even though a new contract has been
lawfully granted to the tenth respondent.11
[12] The twenty -second respondent avers that it will suffer harm if the
implementation applicant is successful and contends that the harm it will suffer is
outweighed by the harm the tenth respondent will suffer should it be unsuccessful .
The core argument by the twenty -second respondent seems to be that severe harm
would befall it and its employees if the order were to be implemented . This must be
measured against the relevant background as there can be no question that the
tenth respondent has been unable to perform in terms of a contract awarded to it
almost a year ago . This is causing it irreparable harm because the contract’s
intended duration is only two years.12
[13] The tenth respondent has, among other things, undertaken the following to
fulfil the contract awarded to it: (a) provided significant insurance for its guards , (b)
provided significant performance guarantees , (c) established sites in six different
districts in terms of the tender document and, (d) a ffected operational requirements
for the complete takeover of all sites.13
[14] Simply put, the tenth respondent has been losing daily revenue on not being
permitted to perform under a lawfully awarded tender. On the other side of the coin,
the twenty -second respondent has been benefiting from an unlawfully awarded
tender for close to three years and will suffer no judicially cogniz able harm
whatsoever if the tenth respondent were to perform the services provided in its
contract for the remaining little more than one year of its intended duration. The
10 The twenty-second respondent refuses to abide by the terms of the court order of 21 February 2023.
11 This is clearly something out of the ordinary and of an unusual nature.
12 The facts show that exceptional circumstances exist and the tenth respondents is suffering irreparable harm.
13 By 30 June 2023
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twenty-second respondent does not engage with these factual averments, which are
common cause.14
[15] The argument by the twenty -second respondent is that it accepts that while
the tenth respondent may suffer some financial harm, such harm is not irreparable
since it concerns only monetary losses, which can be compensated through
damages if the tenth respondent ultimately succeeds in the appeal. I disagree. I say
this because a breach of administrative jurisdiction usually implies public law
remedies and not private law remedies, aiming to prevent, remedy, or undo an
improper administrative action, provide administrative justice to a wronged person,
promote efficient and effective public administration, and strengthen the rule of law.15
[16] This court retains a broad general discretion to grant the implementation
application and to determine the conditions upon which the right to execute must be
exercised. Our jurisprudence dictates that public interest should be considered
when deciding whether an order appealed against should be implemented pending
the outcome of an appeal.16
[17] It is common cause that the price tendered by the tenth respondent was the
most favourable, being lower than all the others by a significant margin . In contrast,
the applicant’s and the twenty -second respondent’s bids exceeded the pre -tender
estimate. Thus, should the current situation remain in place and the twenty-second
respondent be allowed to continue rendering the services, the public purse will suffer
and incur expenditure that would have been saved on the tenth respondent’s
watch.17
[18] These facts bear testimony to the extent of the existing and ongoing prejudice
to the tenth respondent and the public at large. The only argument left by the
twenty-second respondent to counter these facts is to fall back on its submissions
that the award needed to be revis ed. However, this is a component of the criteria
that only concerns the prospects of success on the appeal, which finds application
when an implementation application must be determined.18
14 The contract is due to terminate in June 2025.
15 This I indicated in my leading judgment on page 21, para [76].
16 Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA) at paras 28 and 35 to 37.
17 The extant extensions have generated in excess of R70 million for the applicant and the twenty-second respondent.
18 The application for leave to appeal was dismissed by the court on 24 April 2024.
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[19] The twenty-second respondent’s opposition to the implementation application
is primarily based on its professed belief that the tenth respondent failed to adhere to
the tender requirements and submitted a non -compliant bid and that the leading
judgments were wrong and fall to be overturned on appeal.19
[20] A new test applies for leave to put into operation and execute an order
pending the outcome of an appeal process . The relevant sections that find
application indicate as follows:
‘…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….’20
and
‘…A court may only order otherwise as contemplated in subsection (1) or (2) if the
party who applied to the court to order otherwise, in addition , proves on a balance of
probabilities that he or she will suffer irreparable harm if the court does not so order
and that the other party will not suffer irreparable harm if the court so orders…’21
[21] Thus, it must be so that the court is given discretion when adjudicating upon
an implementation order. Whether to grant an exceptional order remains entirely
within the court's discretion. In exercising its discretion, regard must be had t o the
prospects of success in any application for leave to appeal since those will bear
down on the issue of exceptionality . As a matter of pure logic, the merits of a n
implementation application must consider the merits of an application for leave to
appeal. The twenty -second respondent’s application for leave to appeal has now
been dismissed by this court , and I find that implementing the orders would be the
only just and equitable outcome in these circumstances.22
[22] I propose the following order:
1. The operation and execution of the orders numbered 1,2 and 3 of this court
granted on 21 February 2024 , read with paragraph F on the order of this court
19 These objections were all technical and did not touch on the merits of the tender process and award.
20 Section (18) (1) of the Superior Courts Act, 10 of 2013.
21 Section (18) (3) of the Superior Courts Act.10 of 2013.
22 Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA) at paras 28 and 35 to 37.
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dated 24 April 2024, are to be implemented pending the outcome of any appeal
process by the twenty -second respondent or until another court otherwise
directs.
2. The twenty-second respondent shall be liable for the costs of and incidental to
this application, such costs to include the costs of two counsel where so
employed.
3. The costs of senior counsel are to be in accordance with scale C , and the costs
of junior counsel shall be in accordance with scale B.
________
WILLE, J
I agree, and it is so ordered:
__________
GAMBLE, J