IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Nos: 5464/24; 5477/24; 5586/24; 5616/24 and 5618/24
Case No: 5464/24
In the matter between:
PRINCETON PROTECTION SERVICES (PTY) LTD Applicant
and
WESTERN CAPE PROVINCIAL GOVERNMENT First Respondent
THE MEC FOR THE DEPARTMENT OF HEALTH
AND WELLNESS WESTERN CAPE GOVERNMENT Second Respondent
THE DIRECTORATE: SUPPLY CHAIN SOURCING
DEPARTMENT OF HEALTH AND WELLNESS
WESTERN CAPE GOVERNMENT Third Respondent
THE HEAD OF THE DEPARTMENT OF HEALTH AND
WELLNESS WESTERN CAPE GOVERNMENT Fourth Respondent
THE MEC FOR PROVINCIAL TREASURY WESTERN
CAPE GOVERNMENT Fifth Respondent
PHANGELA PRIVATE SECURITY SERVICES (PTY) LTD Sixth Respondent
GOLDEN SECURITY SERVICES CC Seventh Respondent
AMAZIM-ZIM SECURITY AND PRIVATE
INVESTIGATORS (PTY) LTD Eighth Respondent
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AND
Case No: 5477/24
In the matter between
GRINNELL SECURITY SERVICES (PTY) LTD Applicant
and
WESTERN CAPE PROVINCIAL GOVERNMENT
AND SEVEN OTHER RESPONDENTS Respondents
AND
Case No: 5586/24
In the matter between
XOLISWA M HOLDINGS (PTY) LTD
t/a EAGLE AGE PROTECTION SOLUTIONS Applicant
and
WESTERN CAPE PROVINCIAL GOVERNMENT
AND SEVEN OTHER RESPONDENTS Respondents
AND
Case No: 5616/24
In the matter between
GREYSTONE TRADING 389CC Applicant
and
WESTERN CAPE PROVINCIAL GOVERNMENT
AND SEVEN OTHER RESPONDENTS Respondents
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AND
Case No: 5618/24
In the matter between
SECHABA PROTECTION SERVICES WESTERN CAPE
(PTY) LTD First Applicant
SILVER SOLUTIONS 2616 CC t/a
STAR SECURITY SERVICES CC Second Applicant
STAR PROJECT MANAGEMENT (PTY) LTD t/a
AMA SECURITY SERVICES Third Applicant
ALL 4 SECURITY SERVICES CC Fourth Applicant
HELIOS SECURITY AND RISK MANAGEMENT CC Fifth Applicant
and
WESTERN CAPE PROVINCIAL GOVERNMENT
AND SEVEN OTHER RESPONDENTS Respondents
Coram: NUKU J
Heard on: 16 and 18 April 2024
Delivered on: 2 May 2024
JUDGMENT
NUKU, J
INTRODUCTION
[1] There are five applications which were brought on an urgent basi s, all seeking
interdictory relief. The interdictory relief sought is the suspension of an implementation
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of a tender awarded by the Western Cape Department of Health and Wellness
(Department) to Phangela Private Security Services Proprietary Limited (Phangela),
Golden Security Services Close Corporation (Golden) and Amazim -zim Security and
Private Investigators Proprietary Limited (Amazim -zim), pending final determination of
proceedings to review the Department’s decision to award the aforesaid tender.
[2] The application s served before Blumberg AJ on 27 March 2024, and he
postponed them to 16 April 2024 , that being the first day that I heard the m. The order
postponing the applications granted the parties leave to approach the Acting Judge
President for the allocation of a judge to hear the applications as it had become clear
that arguments would exceed half a day. The order also incorporated a timetable for the
filing of answering affidavits by the respondents on or before Friday, 5 April 2024, the
filing of the replying affidavits by applicants on or before Wednesday, 10 April 2024, and
the exchange of the parties’ heads of argument by Friday, 12 April 2024. It was also
ordered that all costs would stand over for later determination.
[3] Although the applications were heard together , they were not consolidated and
that necessitates consideration of each application individually although there are some
arguments that overlap. I consider it convenient to deal with the application s in the
sequence that they were issued.
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[4] The first application was launched by Princeton Protection Services Proprietary
Limited (Princeton) on 18 March 2024 under case number 5464/2024 (Princeton
application). The relevant part of the interdictory relief sought by Princeton reads:
‘2. That, pending the final determination of the review application set out on Part B
below (“the review application”), the Respondents are interdicted and or directed
as follows:
2.1 Giving effect to the purported notice of termination of services, dated 26
February 2024, which is meant to take effect, as of 1 April 2024; and/or
2.2 Giving effect to the purported appointment of any other service provider
for private security at Groote Schuur Hospital.
2.3 That the Applicant be permitted to continue rendering the services it
currently renders at Groote Schuur Hospital, on the same terms and
conditions as it is currently doing….’
[5] The second application was launched by Grinnell Security Services Proprietary
Limited ( Grinnell) also on 18 March 2024 under case number 54 77/2024 ( Grinnell
application). The relevant part of the interdictory relief sought by Grinnell reads:
‘2. That, pending the final determination of the review application set out in
Part B below (“the review application”), the first and second r espondents
(collectively referred to as “the Department”):
2.1 be interdicted from giving effect to the decision of the Department
to award tender WCGHSC 0362/1/2023 (“the tender”) to the sixth
to eighth respondents;
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2.2 be interdicted from implementing the awarding of the tender to the
sixth to eighth respondents;
2.3 be interdicted from concluding and/ or implementing any contract
concluded with the sixth to eighth respondents pursuant to the
award of the tender.
2.4 directing that the Department take all actions necessary to allow
the applicant to continue to provide security services at the sites
which it is currently servicing ( “the existing contract”) on the same
terms and conditions as those which are currently in place under
the existing contract ….’
[6] The third application was launched by Xoliswa M Holdings Proprietary Limited
trading as Eagle Age Protection Solutions (Eagle Age) on 19 March 2024 under case
number 5586/2024 (Eagle Age application). The relevant part of the interdictory relief
sought by Eagle Age reads:
‘2. That, pending the final determination of the review application set out in
Part B below (“the review application”), the first and second r espondents
(collectively referred to as “the Department”):
2.1 be interdicted from giving effect to the decision of the Department
to award tender WCGHSC 0362/1/2023 (“the tender”) to the sixth
to eighth respondents;
2.2 be interdicted from implementing the award ing of the tender to the
sixth to eighth respondents;
2.3 be interdicted from concluding and/ or implementing any contract
concluded with the sixth to eighth respondents pursuant to the
award of the tender.
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2.4 directing that the Department take all actions necessary to allow
the applicant to continue to provide security services at the sites
which it is currently servicing (“ the existing contract”) on the same
terms and conditions as those which are currently in place under
the existing contract ….’
[7] The fourth application was launched by Gr eystone Trading 389 Close
Corporation (Greystone) on 20 March 2024 under case number 5 616/2024 (Greystone
application). The relevant part of the interdictory relief sought by Greystone reads:
‘2. That, pending the final determination of the review application set out in
Part B below (“the review application”), the first and second r espondents
(collectively referred to as “the Department”):
2.1 be interdicted from giving any further effect to the decision of the
Department to award tender WCGHSC 0362/1/2023 (“the tender”)
to the sixth to eighth respondents;
2.2 be interdicted from implementing the awarding of the tender to the
sixth to eighth respondents;
2.3 be interdicted from concluding and/ or implementing any contract
concluded with the sixth to eighth respondents pursuant to the
award of the tender.
2.4 directing that the Department take all actions necessary to allow
the applicant to continue to provide security services at the sites
which it is currently servicing (“ the existing contract”) on the same
terms and conditions as those which are currently in place under
the existing contract …. ’
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[8] The fifth application was launched by Sechaba Protection Services Western
Cape Proprietary Limited (Sechaba), Silver Solutions 2616 Close Corporation trading as
Star Security Services CC (Star), Star Project Management Proprietary Limited trading
as Ama Security Services (AMA) , All 4 Security Services Close Corporation (All 4), and
Helios Security and Risk Management Close Corporation (Helios) on 20 March 2024
under case number 5618/2024 (Sechaba application). The relevant part of the
interdictory relief sought by the applicants in the Sechaba application reads:
‘2. That, pending the final determination of the review application set out in
Part B below (“the review application”), the respondents are interdicted
and or directed as follows:
2.1 giving effect to the purported notice of termination of services
provided to the applicants, dated 29 February 2024, which is
meant to take effect, as of 1 April 2024.
2.2 giving any, or any further, effect to the decision of the first and / or
second respondents (“ the Department”) to award tender
WCGHSC 0362/1/2023 (“ the tender”) to the sixth to eighth
respondents;
2.3 implementing the awarding of the tender to the sixth to eighth
respondents;
2.4 be interdicted from concluding and/ or implementing any contract
concluded with the sixth to eighth respondents pursuant to the
award of the tender.
2.4 directing that the Department take all actions necessary to allow
the applicant to continue to provide security services at the sites
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which it is currently servicing (“ the existing contract”) on the same
terms and conditions as those which are currently in place under
the existing contract ….
3. In the alternative , that pending the final determination of the review
application set out in Part B below (“the review application”), the
respondents are interdicted and/ or directed as follows:
3.1 giving effect to the purported notice of termination of services
provided to the applicants, dated 29 February 2024, which is
meant to take effect, as of 1 April 2024.
3.2 giving effect to the purported appointment of any other service
provider for sites currently serviced by first, second, fourth and
fifth applicants….
4. In the further alternative , that the respondents are interdicted and
restrained from allocating any sites which are covered by, and in
contravention of, the Order of Acting Justice Sievers dated 27 September
2019.’
[9] What is clear from the above is that the interdict sought by the applicants is
directed at three things. First , it is to prohibit the Department from terminating the
contracts of those applicants with existing contracts with the Department. Second, it is
to prohibit the implementation of the tender awarded to Phangela, Golden and Amazim -
zim. Third and lastly, it is to extend the contracts, on the same terms and conditions, of
those applicants who had existing contracts with the Department before 1 April 2024.
This is what some of the applicants referred to as the status quo that they want
maintained until the final determination of review proceedings.
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[10] The orders sought by Grinnell, Eagle Age and Greystone in the review are
couched in identical terms. In the relevant part they read:
7. Reviewing and setting aside in terms of the Promotion of Administrative Justice
Act 3 of 2000 (“PAJA”) the first respondent’s, alternatively the second
respondent’s, further alternatively the fourth respondent’s (“the respondents”)
decision to mark the applicants’ tenders WCGHSC 0362/1/2023 (“the tender”)
non-responsive and to exclude them from further consideration.
8. Declaring the applicants’ bids were responsive to the requirements of the tender.
9. Referring the matter back to the respondents for the applicants’ tenders to be re -
adjudicated by the third and fourth respondents on the basis that they are
deemed responsive.
[11] The relief sought by Princeton and the applicants in the Sechaba application in
the review are also couched in similar terms. In the relevant part they read:
1. Reviewing and setting aside in terms of the Promotion of Administrative Justice
Act 3 of 2000 (“PAJA”) the decision to declare the Applicants’ tender submissions
for tender number WCGHSC 0362/1/2023, as non-responsive.
2. Substituting that decision(s), one that the Applicants are declared responsive and
must be included in the panel of service providers constituted pursuant to tender
number WCGHSC 0362/1/2023.
3. In the alternative to paragraph 2 above, remitting the Applicants ’ bid
documentation to the Respondent for reconsideration for the purposes of
inclusion in the panel of service providers pursuant to tender number WCGHSC
0362/1/2023.
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[12] To summarise, Grinnell, Eagle Age and Greystone seek the setting aside of the
tender award as well as the remittal of the tender for reconsideration by the Department
on the basis that the ir bids were responsive. Princeton and the applicants in the
Sechaba application, on the other hand, seek the setting aside of the tender award as
well as the substitution of the decision of the Department with a decision that declares
that their tenders were declared responsive and must be included in the panel of service
providers con stituted pursuant to tender number WCGHSC 0362/1/2023. In the
alternative, they also seek the remittal of the tenders for reconsideration by the
Department on the basis that their bids are responsive.
FACTUAL BACKGROUND
[13] Nine of the ten applicants provide private security services (Services) at the
healthcare facilities of the Department. The Services are provided in terms of contracts
between individual applicants and the Departmen t. All these contracts were for fixed
terms that w ere to terminate on 31 March 2024. For convenience I refer to these
contracts as ‘existing contracts.’
[14] In anticipation of the termination of the existing contracts by effluxion of time, the
Department commenced a procurement process with the aim of concluding new
contracts for the provision of the Services effectively from 1 April 2024. The invitation to
tender was published on 12 May 2023 under tender number WCGHSC03621/1/2023
(Tender) and the closing date was 9 June 2023.
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[15] The healthcare facilities in respect of which the Department requires these
Services were grouped into zones and the interested service providers were required to
submit bids in respect of each zone. The zones were , in turn, divided into two groups,
that is metro zones and rural zones.
[16] The Department received 107 bids including those of the applicants. The
evaluation of the bids was done in three phases. Phase 1 assessed compliance with
mandatory criteria . P hase 2 was an operational assessment of bidder’s ability to
perform. Phase 3 was to consider price and preference points.
[17] All but eight bids made it past phase 1. Four were excluded for failure to attend
the compulsory briefing sessions , ninety-one were excluded for failure to comply with
the mandatory criteria regarding the submission of documents and four were excluded
for incomplete pricing schedules. Except for Star Project Management (Pty) Ltd , all the
applicants were excluded during this phase although there was some argument that
Grinnell made it past phase 1.
[18] Operational assessments were conducted in respect of the eight remaining bids.
All eight proceeded to phase 3 where they were considered on the price and preference
points. In the end the Department awarded the tender to Phangela, Golden and
Amazim-zim. All the bidders were advised of the outcome . The Department also
communicated its intention to have Phangela, Golden and Amazim -zim take over by 1
April 2024.
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[19] Dissatisfied with the Department’s decision to award the tender, the applicants
brought these applications seeking, in Part A, the interim interdictory relief and in Part B,
a judicial review of the Department’s decision.
[20] All the applications are opposed by first to the fifth respondents (the government
respondents) as well as the eighth respondent . The seventh respondent’s opposition is
limited to the extent that the relief would impact on the zones that it has been awarded.
The sixth respondent did not participate in the proceedings.
[21] As indicated earlier the applications were not consolidated. That notwithstanding,
and by agreement between the parties’ legal representatives, the government
respondents filed one answering affidavit dealing with all five applications. Considering
that, I consider it convenient to set out each of the applicants’ case . Before doing that, I
deal briefly with two issues, namely urgency and the late application for the filing of the
eighth respondent’s answering papers.
URGENCY
[22] As stated earlier, the application started off in the fast lane. One of the initial
points taken by the government departments relates to urgency. To that end, they had
filed an affidavit dated 26th March 2024 dealing only with the issue of urgency. By the
time the matter came before me , it was not immediately clear whether the government
respondents persisted in taking the urgency point. On the second day of the hearing, Mr
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De Waal SC, who appeared for the government respondents, advised the court that the
government respondents were not persisting with the issue of urgency as a self -
standing ground of opposition. That then disposed of the need for the parties to address
the court on the issue of urgency.
THE EIGHTH RESPONDENT’S APPLICATION FOR CONDONATION FOR THE
LATE FILLING OF THE ANSWERING AFFIDAVIT AND HEADS OF ARGUMENT
[23] The eighth respondent was required to deliver its answering papers, in terms of
the court order taken by agreement between the parties, on 5 April 2024. This it did not
do. It is not clear when its answering affidavit was filed but it is dated 13 April 2024,
which is a day after the applicants were required to file their replying affidavits.
[24] The explanation for the delay by the deponent to the affidavit filed on behalf of
the eight h respondent, starts off with the respondent’s failure to file the answering
affidavit by 25 March 2024. This, however, is unnecessary as the parties had
subsequently agreed on a new date for the filing of answering papers, the 5th April 2024.
[25] The sum-total of the eighth respondent’s explanation is that the decision not to
deliver the answering affidavit was a strategic decision taken to avoid costs and in the
hope that the applications would be successfully opposed by the government
respondents. The deponent goes furthe r stating that he became unavailable at times
which he does not spell out in his affidavit. Finally, he states that it was on the urging by
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the attorneys acting for the government respondents that the eighth respondent decided
to deliver its answering affidavit.
[26] Mr Nyathi, who appeared on behalf of the eighth respondent , frankly
acknowledged the shortcomings of the ex planation for the late delivery of the eighth
respondent’s answering papers. He, however, implored the court to condone the
lateness on the basis that it would be in the interest of justice to do so. In this regard, he
referred this court to the decision s of the Constitutional Court in Bertie Van Zyl 1 and
Ferris2.
[27] In Bertie Van Zyl, Mokgoro J writing for the majority had the following to say 3 ‘…
lateness is not the only consideration . The test for condonation is whether it is in the interest of
justice to grant condonation ’. (footnotes omitted) In Ferris, the Constitutional Court
referred to its decision in Bertie Van Zyl and went further to state that ‘ As the interest of
justice is a requirement for condonation and granting leave to appeal, there is an overlap
between the enquiries. For both enquiries , an applicant’s prospects of success and the
importance of the issue to be determined are relevant factors.4
[28] In determining whether it is in the interest of justice to condone the lateness, a
court is required to consider several factors and there is not an exhaustive list. In light
thereof, I invited Mr Nyathi to indicate what factors should be considered in this matter
1 Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2009 (10) BCLR 978 (CC)
2 Ferris and another v FirstRand Bank Ltd and another 2014 (3) BCLR 321 (CC)
3 At para [14]
4 At para [10]
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to which he only referred to the prospects of success of the eighth respondent’s
opposition of the application.
[29] In my view , the prospect of success alone in this matter do not tilt the scales
sufficiently for the lateness to be condoned. The lateness was deliberate. The eighth
respondent’s affidavit was filed to deal, in essence , with one issue the government
respondents could not deal with, that is the balance of convenience as between the
applicants and the eighth respondent. This is an important aspect in respect of which,
because of the lateness of the filing of the answering affidavit, the applicants were
deprived of an opportunity to deal with in their replying papers . That this must result in
great prejudice to the applicants is self-evident.
[30] Also, the approach of the eighth respondent to the application for condonation is
as if condonation can be had for the mere asking , something which the Constitutional
Court has said cannot be. My view is that taking into account the period of the delay, the
absence of a satisfactory explanation for the delay as well as prejudice to the
applicants, it would not be in the interests of justice to condone the late filing of the
eighth respondent’s answering affidavit. The eighth respondent’s application for
condonation for the late filing of the answering affidavit cannot succeed.
[31] As for the eighth respondent’s heads of argument, there was not even an
application for condonation and in the absence thereof condonation cannot be granted.
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The lateness of the filing of the eighth respondent’s answering affidavit as well as the
heads of argument cannot be condoned in these circumstances.
[32] The time taken in dealing with arguments in respect of the eighth respondent’s
application for condonation was miniscule such that a cost order is not warranted. There
shall therefore be no order as to costs in respect of the eighth respondent’s application
for condonation.
PRIMA FACIE RIGHT ASSERTED ON BEHALF OF EACH APPLICANT
[33] One of the government respondents’ ground s of opposing Part A is that all the
applicants had not alleged any rights that required protection pending the review.
Instead, they all had relied on the right to review the outcome of the tender process ,
which right requires no protection pending the determination of the review.
[34] During argument, all the applicants’ counsel disavowed any reliance by the
applicants on th e applicants’ right to review the outcome of the tender process as the
right that they sought to have protected pending the final determination of the review . It
is thus necessary to have regard to how each applicant pleaded the right/s alleged to
require protection pending the final determination of the review.
Princeton
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[35] Princeton currently provides Services at the Groote Schuur Hospital and the
interdict it seeks pertains only to Groote Schuur Hospital . Its bid was excluded on the
basis that it had not submitted a certificate from the National Bargaining Council for the
Private Security Sector (NBCPSS). It contends that the decision to exclude it constitutes
a reviewable irregularity because it had substantially complied with that requirement as
it had provided a letter from the NBCPSS.
[36] Princeton deals with the prima facie right in paragraphs 71 to 77 of the founding
affidavit. These paragraphs read:
’71. As indicated here in above, the applicant is one of the incumbent service
providers in terms of the previous ten der. The applicant has via this experience,
gained vast and specific experience regarding the respondents’ security needs.
72. The applicant ’s bid was substantially and substantively compliant.
Notwithstanding this , the applicant has been unfairly and unlawfully excluded
from the process.
73. The applicant, and by consequence it s employees, have a constitutional right to
just administrative action. As has been explained above, this constitutional right
has been violated. There have been reviewable irregularities which ha ve led to
the irregular exclusion of the applicant from consideration. The grounds a re
narrow, yet fundamentally flawed.
74. The perverse effect of the unlawful exclusion of the applicant is that respondent
will now pay more for the service. This is so because the exclusion of the
applicant will reduce competition and therefore increase the price for the service.
The effect of this is that the respondent will be non -compliant with section 217 of
the constitution.
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75. I have been advised that properly construed, section 217 of the constitution
requires that the process must be competitive . The inclusion, rather than the
exclusion, of the applicant would further the competitive nature of the process.
Furthermore, the inclusion of the applicant would lead to cost -effectiveness (also
a requirement of section 217 of the constitution), because prices would need to
be lowered by the inclusion of more compliant bidders, than excluding them.
76. Should interdictory relief not be granted, there will be potential loss of
employment of 198 officers in respect of the Groote Schuur Hospital site . The
applicant w ill need to retrench th ese officers . This will affect not only those
officers, but the ir respective families . In addition, the applicant’s decline in its
financial situation will place its existence in peril - this in turn places my personal
livelihood at jeopardy.
77. In light of the above, it is respectfully averred that the applicant’s prima facie right
is not only its right to review the adverse decision, but is a right which if not
protected, irreparable harm may ensue’
Grinnell
[37] Grinnell currently provides Services at the Red Cross War Memorial Children's
Hospital in terms of framework agreement WCPT-TR01/2017/2018. The contract
concluded between Grinnell and the Department pursuant thereto expired on 31 March
2024. Its bid was excluded on the basis that it did not bid for all the services required by
the Department. It contends that the decision to exclude it constitutes a reviewable
irregularity in that (a) there was no requirement that bidders had to bid for all the
services required by the Department, (b) the Department, in its clarification letter, never
conveyed the requirement to bid for all the services, (c) the tender was awarded to only
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three bidders when the tender documents did not specify that the tender was a winner
takes all, and (d) the tender requirements were vague and ambiguous.
[38] The prima facie right it relies on is dealt with in paragraphs 104 to 111 which
read:
‘104. I am advised that the first requirement for an interim interdict is that an applicant
needs to show a prima facie right, even if it may be subject to some doubt. This
may be established by showing prospects of success on review.
105. The reason why Grinnell seeks a general interdict in respect of the
implementation of the tende r, is because it would be extremely difficult, if not
impossible, for three companies to provide the full spectrum of services required
by the Department at all the facilities throughout the province. Any failure on their
part to provide a full and comprehensive service, imposes severe risks to the
department, its staff and patie nts. Alternatively, there should at least be an
interdict in favour of Grinnell at our sites.
106. It is respectfully submitted that, on the facts and circumstances set out above, it
is evident that a material irregularity occurred in the evaluation end subsequent
disqualification of Grinnell’s bid and Grinnell has a right to have the decision
reviewed and set aside in order to protect its right to just administrative action in
terms of section 33 of the constitution, read with PAJA.
107. Had Grinnell not been unlawfully and unfairly disqualified, it stood an excellent
chance of being successful, at least in respect of the Red Cross War Memorial
Children's Hospital facility, where it has provided services to the department at a
competitive rate for years. During this period t here have been no complaints by
the department as to the nature, scope and quality of the services provided.
108. For current purposes it is submitted that Grinnell has provided a compelling basis
to indicate the strong likelihood that the review proceedings will be successful.
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The interim relief which Grinnell seeks – i.e. to freeze the status quo until such
further processes are exhausted – is necessary to ensure the integrity of the
tender process and to ensure that Grinnell can be given effective relief. An
eventual finding that the department acted unlawfully will be meaningless without
the interim relief being granted.
109. Grinnell currently employs 80 guards to service the department’s contract a t Red
Cross War Memorial Children's Hospital. Grinnell has always been committed to
upholding the dignity of employment of our guards. We have nurtured a work
environment that values their skills, experience, and dedication. The termination
of their employment by the department pursuant to an unlawful procurement
process strips them of this dignity and respect, treating them as disposable
assets rather than valued individuals contributing to the safety and the security of
the Department.
110. The guards, many of whom have served the department for the past two years,
take great pride in their work and the sense of responsibility they hold to protect
the department's assets . The abrupt termination of their employment as a result
of an unlawful procurement process will have an immediate and far-reaching
impact on their financial well-being, as well as their dignity.
111. As I have submitted, Grinnell has strong prospects of success in the review
proceedings. Far more than a prima facie right, Grinnell has actually shown a
clear right to the relief sought.’
Eagle Age
[39] Eagle Age currently provides Services at the Vanguard Hospital, Stikland
Hospital and College of Nursing pursuant to the award of tender WCPT-TR01/2017/18.
The contract concluded between Eagle Age and the Department pursuant to the said
award of the tender expired on 31 March 2024 . The reasons provided for the exclusion
of its bid were that it failed to submit (a) a registration certificate issued by the NBCPSS,
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and (b) sufficient evidence of its submission of a Workplace Skills Plan to the Safety
and Security Sector Education and Training Authority (SASSETA). It contends that the
decision to exclude it constitutes a reviewable irregularity in that (a) it submitted all the
mandatory documents , (b) the tender was awarded to only three bidders when the
tender documents did not specify that the tender was a winner takes all, and ( c) the
tender requirements were vague and ambiguous.
[40] Eagle Age deals with the prima facie right in paragraphs 8 4 to 91 of its founding
affidavit. The contents of these paragraphs are a mirror image of the contents of
paragraphs 104 to 111 of the Grinnell application referred to above . The only difference
is that Eagle Age employs 104 guards which have been servicing Vanguard Hospital,
Stikland Hospital, and the College of Nursing since October 2019.
Greystone
[41] Greystone currently provides Services to the Department in respect of George,
Knysna, Uniondale, Caledon, Grabouw, Hermanus , Mossel Bay, Swellendam,
Riversdal, Beaufort West, Mu rraysburg and Laingsburg. This is in terms of a contract
that expired on 31 March 2024 . The reasons provided for the exclusion of its bid were
that it failed (a) to submit a registration certificate issued by the NBCPSS (b) proof of
submission of a Workplace Skills Plan to SASSETA , and (c) B-BBEE Certificate or an
affidavit dated within 3 months of the tender closing date . It contends that the decision
to exclude it constitutes a reviewable irregularity in that it submitted all the mandatory
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documents, and that the decision to award the tender to three bidders was arbitrary,
capricious, and irrational.
[42] Greystone deals with the prima facie right in paragraphs 75 to 82 of its founding
affidavit. The averments contained in these paragraphs also mirror those in the Grinnell
and Eagle Age applications with the minor variations regarding the number of
employees as well as the sites serviced by Greystone.
Sechaba applicants
[43] Sechaba currently provides Services to the Department in respect of Delft
Hospital, Delft Symphony CDC, Bishop Lavis CHC, Kraaifontein CHC, Elsies River
CHC, Ruiterwacht CHC, Ravensmead CHC, Bellville CDC, Bothasig C DC, Durbanville
CDC, Goodwood CDC, Par ow CDC, Reed Street CDC, Scottsdene CDC, Karl Bremer
Hospital, Karl Bremer Ad hoc, Mowbray Maternity, New Somerset New Somerset Ad
hoc. This is in terms of a contract that expired on 31 March 2024. The reasons provided
for the exclusion of its bid were that it failed to submit bids for all the services required
by the Department . It contends that the decision to exclude it constitutes a reviewable
irregularity in that (a) the Department misconstrued the tender specifications, (b) there
was no omission as it s pricing schedule provided all the prices in respect of services it
was bidding for and left out those in respect of which it did not intend to bid for, (c) the
Department could not require the bidders t o submit prices in respect of services which
the bidders did not intend to bid for, (d) the decision to award the tender to three bidders
was arbitrary, capricious and/ or irrational.
24
[44] Star currently provides Services to the Department in respect of Grassy Park
CDC, Lady Michaelis CDC, Lotus River CDC, Retreat CHC, Victoria Hosp ital, Orthotics
and Prosthetic Centre, DP Marais Hospital, Retreat CHC and Retreat Ad hoc . This is in
terms of a contract that expired on 31 March 2024 . The reason provided for the
exclusion of its bid relates to proof of submission or failure to submit the Workplace
Skills Plan to SASSETA, a reason which Star contends is incomprehensible. It contends
that the decision to exclude it constitutes a reviewable irregularity in that (a) the decision
to award the tender to three bidders was arbitrary, capricious and/ or irrational , and (b)
the tender specifications were vague and ambiguous.
[45] AMA did not have an existing contract with the Department prior to the
publication of the tender . AMA made it to the third phase of evaluation. AMA was,
however, not awarded the tender because of its low scoring in respect of the B -BBEE
preference point. It contends that the decision to exclude it constitutes a reviewable
irregularity in that ( a) the decision to award the tender to three bidders was arbitrary,
capricious and/ or irrational, and (b) the tender specifications were vague and
ambiguous.
[46] All 4 currently provides services to the Department in respect of False Bay
Hospital, Hout Bay Hospital and Hout Bay CDC. This is in terms of a contract that
expired on 31 March 2024. The reasons provided for the exclusion of its bid were that it
failed to submit the certificate of registration with N BCPSS as well as proof of
25
submission of the Workplace Skills Plan with SASSETA . It contends that the decision to
exclude it constitutes a reviewable irregularity in that (a) it submitted both the
documents that form the basis of its exclusion , (b) the decision to award the tender to
three bidders was arbitrary, capricious and/ or irrational, and ( c) the tender
specifications were vague and ambiguous.
[47] Helios currently provides services to the Department in respect of The Cape
Town Regrographic Clinic, Dorp Street Reproductive Health Centre , Green Point CDC,
District Six CDC and the Observatory Forensic Pathology Institute. This is in terms of a
contract that expired on 31 March 2024 . Its bid was excluded because it did not bid for
all the services required by the Department . It contends that the decision to exclude it
constitutes a reviewable irregularity on the same grounds as those advanced on behalf
of Sechaba.
[48] The Sechaba applicants deal with the issue of a prima facie right in paragraphs
108 to 114 of the founding affidavit. The averments made in this regard mirror those
made in the Princeton application. Curiously there is no differentiation in respect of AMA
which did not have an existing contract with the Department.
SUMBISSIONS ON BEHALF OF THE APPLICANTS ON THE ISSUE OF PRIMA
FACIE RIGHT
[49] Mr Jamie SC, who appeared with Ms Christians on behalf of Grinnell and Eagle
Age submitted that Grinnell and Eagle Age seek to protect three species of rights. The
26
first, he termed the public interest. The second was the right to make a living. The third
was the right of the guards employed by both companies.
[50] Mr Nacerodien, who appeared for Princeton and the Sechaba applicants ,
submitted that the re was an imminent breach of the Constitutional rights of Princeton
and Sechaba applicants as contained in section 33 and 217 of the Constitution read
with Promotion of Administrative Justice Act 3 of 2000 (PAJA). He further submitted that
the right to have access to health care as provided for in section 27 of the Constitution ,
the right to life as provided for in section 11 of the Constitution , as well as the right to
freedom and security of person as provided for in section 12 , were some of the rights
that Princeton and the Sechaba applicants sought to protect pending the finalisation of
the review.
[51] Ms Christians, who appeared on behalf of Greystone associated herself with
most of the arguments made by her colleagues. She further submitted that Greystone
approached the court out of concern for public safety that stood to be harmed by
employment of only three service providers to provide Services to the Department.
WHAT THEN IS THE PRIMA FACIE RIGHT THAT AN APPLICANT FOR AN INTERIM
INTERDICT IS REQUIRED TO ESTABLISH?
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[52] The answer to this question is, in my view, to be found in the statement by
Corbett J (as he then was) in LF Boshoff Investments 5 where, dealing with the
requirements of an interim interdict, he stated:
‘Briefly these requirements are that the applicant for such temporary relief must show-
(a) that the which is the subject-matter of the main action and which he seeks to
protect by means of an interim relief is clear or if not clear , is prima facie
established, though open to doubt;…’
[53] It thus appears tha t it is not just any right that an applicant can put up in
proceedings for interim relief, but it must be the right that requires protection pending
the main proceedings instituted for the final determination of a dispute relating to that
right. As was stated in Albert6 ‘Interdicts are based upon rights, that is, rights, which in
terms of the substantive law are sufficient to sustain a cause of action . Such right may
arise out of contract, or a delict; it may be founded in the common law or some or other
statute.7’ In my view, therefore, interdicts of this nature are concerned with protection of
extant rights , which although may be disputed are subject to vindication in the main
proceedings.
[54] To paraphrase, the right sought to be protected must the same right sought to be
vindicated in the main proceedings. This, however, is not always the case but as a
minimum the outcome of the main action must have some bearing on the right sought to
be protected in the interim. In the circumstances of this case what is required of the
5 L F Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) at 267A
6 Albert v Windsor Hotel (East London) (Pty) Ltd (in liquidation) 1963 (2) SA 237 (E) at 240E – 241G
7 Prest, Law and Practice of Interdicts, Jut and Co, 1996 at p52 (references to cases omitted)
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applicants is to establish, albeit on a prima facie basis , the existence of a right or rights
which will be vindicated in the review proceedings. In the alternative, the outcome of the
review must be demonstrated to have some bearing on the prima facie rights relied on
upon by the applicants. Having dealt with the nature of a right that has to be
established, it is now time to consider whether the rights relied upon by the applicants ,
are the same rights sought to be vindicated in the review or whether the outcome of the
review will have any bearing on the rights sought to be protected by the interim interdict.
DISCUSSION
[55] I have set out above the relief sought by the applicants both in Part A, that is the
interim interdictory relief and Part B, the review proceedings. It is common cause that
the review proceedings are about the vindication of the applicants ’ rights to just
administrative action that is lawful, reasonable, and procedurally fair. As already stated
above, none of the applicants relied on this right in seeking the interim interdict.
[56] In as much as there was much debate about the prima facie right that the
applicants sought to have protected by the interim interdict they seek in these
proceedings, none of them suggested that any of such rights are the rights sought to be
vindicated in the review proceedings. This is not surprising because proceedings f or
judicial review are concerned only with the right contained in section 33 of the
Constitution as given content to by PAJA.
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[57] That the review proceedings are only concerned with the right to just
administrative action that is lawful, reasonable, and procedurally fair is clear from the
grounds of review as well as the orders sought, none of which bears any relation to the
rights put up by the applicants to support their claim to an interim interdict.
[58] The public interest, the right to make a living, and the rights of the guards
employed by Grinnell and Eagle Age are not that right that the review court is being
called to determine. And the outcome of the review has no bearing on these rights.
Similarly, the plethora of rights put up on behalf Princeton and the Sechaba applicants
are not subject to vindication by the review court , and there can be no suggestion that
the outcome of the review has any bearing on these rights. That is also the case with
the public safety right relied upon Greystone. The applicants, therefore, have failed to
establish a prima facie right that requires protection pending the finalisation of the
review.
[59] The question that flows from the above is whether the court is still required to
consider the other requirements of an interim interdict in circumstances where the right
sought to be protected is not the same right that is to be vindicated in the main
proceedings. In my view, the answer must be in the negative . This is so because th e
success of the applicants , in the review, has no bearing on the rights that they seek to
have protected by the interim interdict. It is well to remember that the contracts of nine
of the applicants had run their course and the applicants can claim no rights beyond
30
those conferred by those contracts. Worse still is the case of AMA who had no existing
contract with the Department.
[60] It is a different matter where the existence of the right sought to be protected has
been cast in doubt. In those circumstances the court would still be required to consider
the irreparable harm, the balance of convenience as well as the absence of other
satisfactory remedy. This is not such a case because the only right that is the subject of
the main proceedings is the one which the applicants have conceded that it does not
require protection by means of an interim interdict. It follows therefore that the
applications cannot succeed. There was an alternative claim on behalf of Sechaba
relating to an order granted by Sievers AJ, an issue which I deal with briefly below.
THE SIEVERS AJ ORDER
[61] On 27 September 2019, Sievers AJ granted an order in favour of Sechaba under
case number 16827/2019. The order interdicted , pending the final determination of a
review application, the Western Cape Provincial Government Acting Director: Supply
Chain Management , the Accounting Officer of the Western Cape Department of
Finance, Western Cape Provincial Government and the Department of Health, Western
Cape from (a) giving effect to the purported extended notice to Sechaba, which notice
was to take effect on 20 September 2019 and (b) giving effect to the purported
appointment of Eagle Age, Metro City Protection Services CC t/a Metro City Protection
and All 4 to various health facilities falling under the Department . The order further
31
directed that Sechaba be permitted to continue rendering the services it was currently
rendering at the time until the finalisation of the review.
[62] The allegation s were that, by awarding the tender to Phangela, Golden and
Amazim-zim, the Department was in contempt of the order granted by Sievers AJ. The
papers do not make it clear whether an interdict is sought because the Department is in
contempt, or whether the intention was to hold the Department in contempt. In either
case, no case was pro perly made . It was not explained why an interdict would be
necessary when Sechaba already has an order in place as all that would be left was to
either execute on the order or initiate contempt of court proceedings. Any reliance on
the order granted by Sievers AJ by Sechaba cannot be of any assistance. This is even
more so, that the parties are not the same in that matter and in this matter. It remains to
deal with the issue of costs.
COSTS
[63] It was submitted on behalf of the applicants , relying on what has become known
as the Biowatch principle, that the re should be no order as to costs in the event of the
dismissal of the applications. This, it was submitted, is because an application for an
interim interdict forms an integral part of the review proceedings which are undoubtedly
proceedings to vindicate Constitutional rights.
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[64] Mr De Waal SC left the matter in the hands of the court as he said that he was
not aware of any authority that the Biowatch principle applies in respect of interim
interdictory proceedings.
[65] None of the parties referred to any authority dealing with interim interdictory relief
pending proceedings to vindicate a Constitutional right. At face value it do es, though,
seem correct that if you should be insulated against an adverse costs order in the main
proceedings to vindicate a right, the same should also apply when a litigant seeks
interim protection of that right . In my view , therefore, there should be no order as to
costs.
ORDER
[66] In the circumstances I make the following order:
66.1 The eighth respondent’s application for the late filing o its answering affidavit is
refused;
66.2 All five applications are dismissed; and
66.3 There shall be no order as to costs.
__________________________
Judge L.G. Nuku
Judge of the High Court
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APPEARANCES
For the Applicant in Case No: 5464/24:
A Nacerodien instructed by Asherson Attorneys
For the Applicants in Case Nos: 5477/24 and 5586/24:
I Jamie SC and A Christians instructed by Dirk Kotze Attorneys
For the Applicant in Case No: 5616/24:
A Christians instructed by Wayne Hufkie Attorneys
For the Applicant in Case No: 5618/24:
A Nacerodien instructed by Mark Hess Attorneys
For the First to the Fifth respondents:
J De Waal SC and M Mokhoaetsi instructed by The State Attorney, Cape Town
For the Sixth Respondent:
No appearance
For the Seventh Respondent:
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Ms. Mathe-Ndlazi instructed by Lingani and Partners Inc
For the Eighth Respondent:
D Nyathi instructed by BDP Attorneys