About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 97
|
|
HT Pelatona Projects (Pty) Ltd v Tswelopele Local Municipality and Others (2214/2022) [2022] ZAFSHC 97 (23 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
2214/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
HT
PELATONA PROJECTS (PTY) LTD
Applicant
and
TSELOPELE
LOCAL MUNICIPALITY
1
st
Respondent
NSM
PROFESSIONAL SERVICES AND
GENERAL
PROJECTS (PTY)
LTD
2
nd
Respondent
[as
joint venture partner of NSM Professional
Services
and General Projects & Tamane Civils JV]
TAMANE
CIVIL CONSTRUCTION (PTY) LTD
3
rd
Respondent
[as
joint venture of NSM Professional Services
and
General Projects & Tamane Civils JV]
CORAM
:
JP DAFFUE J
HEARD
ON
:
20 MAY 2022
DELIVERED
ON
:
23 MAY 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 17h00 on 23 MAY 2022.
I
INTRODUCTION
[1]
Yet another application for
interim
relief was brought on an
urgent basis by a disgruntled tenderer. The notice of motion was
issued on 13 May 2022 and after filing
of answering and replying
affidavits the matter was allocated to me to be heard on Friday, 20
May 2022. I heard the application
virtually on the Microsoft Teams
platform. The parties agreed that this judgment could be forwarded to
them electronically by email.
II
THE PARTIES
[2]
The applicant is HP Pelatona Projects (Pty) Ltd, a Welkom based
company who was represented
before me by Adv S Grobler SC on
instructions of Peyper Attorneys.
[3]
The Tswelopele Local Municipality, properly established in terms of
the provisions
of the Local Government: Municipal Structures Act,
[1]
is situated in the town of Bultfontein. Adv A Ayayee appeared before
me on behalf of first respondent on instructions of Majavu
Inc in
Johannesburg, c/o Rampai Attorneys.
[4]
The second respondent is NSM Professional Services and General
Projects (Pty) Ltd,
a private company based in Springs, Gauteng.
[5]
The third respondent is Tamane Civil Construction (Pty) Ltd, a
private company with
main place of business situated in Bloemanda,
Bloemfontein.
[6]
The second and third respondents did not oppose the application.
III
THE RELIEF CLAIMED
[7]
The applicant seeks an
interim
interdict with immediate effect
in terms whereof the respondents are interdicted and restrained from
implementing or acting upon
the decision of first respondent to award
a public tender in respect of the refurbishment of the sewer pump
station in Bultfontein/Phahameng
to the second and third respondents
pending final adjudication of a review application to be instituted.
IV
THE DEFENCES
[8]
The first respondent relies on the following defences:
8.1
The application is not urgent;
8.2
The applicant relies on an incorrect tender notice and invitation
to
tender which was published in a local newspaper. According to first
respondent the notice of evaluation presented to prospective
bidders
should take precedence as is also the case with the draft tender
notice and invitation to tender attached to the answering
affidavit;
[2]
8.3
The unsigned document prepared by NEP Consulting Engineers
[3]
provided by first respondent to applicant as part and parcel of the
bid evaluation report should not be considered by the court
as the
status of this document is uncertain;
8.4
The first respondent’s Bid Evaluation Committee (“BEC”)
was in any event not bound to accept the recommendations of the
engineers;
8.5
As set out in annexure “AA1”
[4]
it was not a peremptory requirement that both members of the JV had
to be in possession of both a CE and ME Construction Industry
Development Board (“CIDB”) grading;
[5]
8.6
Although it is conceded that there were certain administrative
slip-ups, it is denied that any such slip-ups are material;
8.7
It is denied that the applicant has proven any of the requirements
of
an
interim
interdict. Emphasis was placed on the balance of
convenience and the fact that it is in the public interest that the
project be
finalised before the end of June 2022. Also, in the event
of the applicant being successful with its review application, it
would
be fully entitled to claim from the JV the profit it has made
from the project.
V
THE REQUIREMENTS FOR
INTERIM
INTERDICTS
[9]
The four well-known requirements to be proven by an applicant for
interim
relief to be successful are the following:
[6]
“
a.
a
prima facie
right, even if it is subject to some doubt;
b.
a reasonable apprehension of irreparable and imminent harm if
an
interdict is not granted and ultimate relief is eventually granted;
c.
the balance of convenience favours the granting of the
interdict; and
d.
the absence of any other satisfactory remedy.”
[10]
In
Simon
NO v Air Operations of Europe AB and Others
[7]
the Supreme Court of appeal confirmed the well-known test to be
applied in adjudicating a
prima
facie
right
in the context of an application for an
interim
interdict
in the following
dictum
:
“
The
accepted test for a
prima facie
right in the context
of an interim interdict is to take the facts averred by the
applicant, together with such facts set out
by the respondent that
are not or cannot be disputed and to consider whether, having regard
to the inherent probabilities, the
applicant should on those facts
obtain final relief at the trial. The facts set up in contradiction
by the respondent should then
be considered and, if serious doubt is
thrown upon the case of the applicant, he cannot succeed.”
[11]
No doubt, the first requirement, to wit a
prima
facie
right
even open to some doubt, has been considered in a different light
since
Setlogelo
.
In
Gool
v Minister of Justice and Another
[8]
the full bench of the Cape Provincial Division held that in order to
restrain a Minister
pendente
lite
from exercising certain powers vested in him by a statute, relief
should only be granted in exceptional circumstances and when
a strong
case is made out. The Constitutional Court stated recently in
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
(OUTA)
with reference to
Setlogelo
as follows
:
[9]
“
The common law
annotation to the
Setlogelo
test is that courts grant
temporary restraining orders against the exercise of statutory power
only in exceptional cases and when
a strong case for that relief has
been made out. Beyond the common law, separation of powers is an even
more vital tenet of our
constitutional democracy. This means that the
Constitution requires courts to ensure that all branches of
Government act within
the law. However, courts in turn must refrain
from entering the exclusive terrain of the Executive and the
Legislative branches
of Government unless the intrusion is mandated
by the Constitution itself.”
[12]
Although the Constitutional Court held that the
Setlogelo
test
as adapted by case law still remains a handy and ready guide to the
bench and practitioners in the magistrates and high courts,
“the
test must now be applied cognisant of the normative scheme and
democratic principles that underpin our Constitution.”
It
continued: “When considering to grant an
interim
interdict a court must promote the objects, spirit and purport of the
Constitution.” Consequently, the Constitutional Court
stated
the following:
[10]
“
If the right
asserted in a claim for an interim interdict is sourced from the
Constitution it would be redundant to enquire whether
that right
exists. Similarly, when a court weighs up where the balance of
convenience rests, it may not fail to consider the probable
impact of
the restraining order on the constitutional and statutory powers and
duties of the state functionary or organ of state
against which the
interim order is sought.”
[13]
Before I step off the topic, it is necessary to quote the following
from OUTA:
[11]
“
65.
…. It (the court) must assess carefully how and to what extent
its interdict will disrupt
executive or legislative functions
conferred by the law and thus whether its restraining order will
implicate the tenet of division
of powers. Whilst a court has the
power to grant a restraining order of that kind, it does not readily
do so except when a proper
and strong case has been made out for the
relief and, even so, only in the clearest of cases.
66
…. What this means is that a court is obliged to ask itself
not whether an interim
interdict against an authorised state
functionary is competent but rather whether it is constitutionally
appropriate to grant the
interdict.”
VI
A BRIEF BACKGROUND OF THE FACTS LEADING TO THE PRESENT APPLICATION
[14]
The following facts are mentioned briefly:
14.1
Although it is not certain when the first respondent’s water
and sewerage problem
has arisen for the first time, it is apparent
from its papers that a Water Services Infrastructure Grant (“WSIG”)
was
applied for and in that regard a Project Business Plan Revision
(2018) was put on the table. The latest document in this regard
is a
document prepared on 23 March 2021, more than a year ago.
[12]
14.2
The project motivation was captured
verbatim
in the following words:
[13]
“
The
persistent failing of the pumps result in sewerage backing up to the
residents and internal sewer manholes, and this poses a
health risk
to the community at large. And the capacity of the pumps maybe the
only factor affecting the smoothing operation of
the pumps in
general. The Municipality executes routing maintenance on the pump
station regularly however the breakages and blockages
happen more
often.”
14.3
It is not clear from the papers what happened since March 2021, but
eventually prospective
bidders were invited to tender during January
2022.
[14]
Insofar as the
contents of this document is disputed by the first respondent,
alleging it to be an incorrect version of the invitation
to tender
that appeared in a local newspaper, the first respondent decided to
rely on a draft tender notice and invitation to tender.
[15]
I shall refer to these documents again during the evaluation of the
evidence.
14.4
The closing date for tenders was 26 January 2022. Several entities
submitted tenders, including
the applicant and a joint venture (“JV”)
consisting of the second and third respondents.
14.5
The tender was awarded to the JV of the second and third respondents.
On 24 February 2022
the applicant became aware hereof. On that day
correspondence ensued between the parties. The first respondent acted
by way of
a letter dated 1 March 2022 to which it attached the
recommendation of its consulting engineers, the minutes of the BEC
and the
Bid Adjudication Committee (“BAC”) as well as the
letter of award to the JV.
14.6
On 4 March 2022, Peyper Attorneys responded on behalf of the
applicant, whereupon it was
agreed that the contents of this letter
would be considered as an internal appeal in accordance with the
provisions s 62(3) of
the Municipal Systems Act.
[16]
The Municipality, through its previous attorneys, also agreed to stay
any further steps pertaining to the tender awarded pending
the appeal
procedure.
[17]
14.7
On 30 March 2022 the first respondent’s present attorneys came
on board and on 12
April 2022, two weeks later, the internal appeal
was dismissed.
[18]
Three weeks
later, on 5 May 2022, the applicant’s attorneys were informed
about the dismissal of the appeal.
[19]
A request for a stay of the implementation of the works in accordance
with the tender was rejected on 10 May 2022.
[20]
Three days later the applicant filed its application for the relief
claimed herein.
VII
EVALUATION OF THE EVIDENCE AND SUBMISSIONS BY THE PARTIES
Urgency
[15]
In order to consider urgency, it is important to note that the rules
require absence of substantial
redress, which is not equivalent to
irreparable harm which is required before
interim
relief is granted. It is less than that.
[21]
[16]
It is apparent that the first respondent is of the
view that the contract works must be concluded in haste.
If the
applicant was forced to rely on a review application in the normal
sense of the word and based on the normal time periods
prescribed by
rule 53, it would no doubt not be afforded substantial redress, even
if successful on review.
[17]
The prejudiced party is entitled to seek
appropriate relief by way of an
interim
interdict in order to mitigate losses that may be suffered as a
result of unlawful administrative action. This has been clearly
recorded in
Olitzki
Property Holdings v State Tender Board and Another.
[22]
[18]
The Constitutional Court acknowledged in
National
Gambling Board v Premier, Kwazulu-Natal and Others
[23]
that an
interim
interdict is a court order preserving or restoring the
status
quo
pending the determination of rights of the parties, that it does not
involve a final determination of these rights and does not
affect the
final determination, but the purpose is to preserve or restore the
status
quo
pending the decision of the main dispute.
[19]
The applicant reacted immediately on receipt of the notice that the
tender was awarded to the
JV as mentioned above. Correspondence
ensued and an internal appeal was lodged. I mentioned above the
delays that occurred and
that these can also be attributed to the
first respondent and its previous and present attorneys. In any
event, a full set of affidavits
was filed and counsel dealt with the
merits in their written and oral arguments. A sufficient case had
been made out for urgency
and there was no reason to strike the
matter from the roll.
The
first requirement for interim interdicts: prima facie right
[20]
Section 217(1) of the Constitution
[24]
provides that an organ of state contracting for goods of services
must do so in accordance with a system which is fair, equitable,
transparent, competitive and cost-effective. Section 2(1)(f) of
Preferential Procurement Policy Framework Act
[25]
(“PPPFA”) provides that:
“
The
contract must be awarded to the tenderer who scores the highest
points, unless objective criteria… justify the award
to
another tenderer.”
[21]
The JV’s tender did not comply with the tender requirements as
is evident from the acceptable
evidence. In this regard there was
non-compliance with s 1 of the
PPPFA.
Regulation 4(1) of the PPPFA regulations reads as follows:
“
4.(1) If an organ
of state decides to apply pre-qualifying criteria to advance certain
designated groups, that organ of state must
advertise the tender with
a specific tendering condition that only …. or more of the
following tenderers may respond-
(a) …;
(b) …;
(c) …”
Regulation 4(2) then
stipulates that:
“
(2) A tender that
fails to meet any pre-qualifying criteria stipulated in the tender
documents is an unacceptable tender.”
According
to the evidence presented by the applicant which is not presently in
dispute, the JV did not submit an acceptable tender
for the reasons
advanced herein.
[22]
In
Minister
of Social Development and Others v Phoenix Cash and Carry PMB CC,
[26]
the court held that:
“…
a
tender process which depends on uncertain criteria lends itself to
exclusion of meritorious tenders and is opposed to fairness
among
tenderers, and between tenderers and the public body which supposedly
promotes the public weal; …” and “…
a
public tender
process should be so interpreted and applied as to avoid both
uncertainty and undue reliance on form, bearing in mind
that the
public interest is, after giving due weight to preferential points,
best served by the selection of the tenderer who is
best qualified by
price. This is particularly relevant to the activities of a
‘technical evaluation committee’ which
examines the
tenders for formal compliance but does not evaluate the merits of the
bids.”
[23]
The JV did not oppose the application and the applicant’s
version pertaining to the CIDB
grading of second and third
respondents is not in dispute. The first respondent relies on
extracts from the CIDB website, but this
clearly shows that neither
of these two respondents were eligible to be awarded the relevant
tender. The second respondent possesses
a Grade 6 CE PE and a 1 ME
PE. The CE class denotes Civil Engineering and the ME class denotes
Mechanical Engineering. At best
for the first respondent, the second
respondent as lead partner in the JV must possess a Grade 4 CE/ME PE
or higher, ie both a
4 CE and ME PE grade or higher.
[27]
The applicant’s version pertaining to the CIDB qualifications
of second and third respondents are not in dispute and must
be
accepted for purposes of adjudication of this application.
[24]
The first respondent tried to cast doubt on the report of the NEP
Consulting Engineers attached
as Annexure “HT5”, but
nowhere was the content of this report rejected as false or
misleading. It is clear that this
firm of Consulting Engineers is and
was at all relevant times the agent of the first respondent. It is
therefore an eye opener
to take note that this firm’s technical
report dated 3 March 2022 pertaining to the same construction works
is relied upon
in the answering affidavit.
[28]
This report is attached to the answering affidavit. NEP Consulting
Engineers (Pty) Ltd are the very same engineers whose report
was
provided to the applicant and attached as annexure “HT5”
to the founding affidavit,
[29]
which report is now referred to by the first respondent as “work
in progress”. The March 2022 report deals with
the
refurbishment of the Bultfontein/Phahameng sewer pump station.
[30]
In the introduction the scribe of the report made it clear that the
purpose thereof was to present technical information with regards
to
the sewer pipe station and to identify shortcomings. I quote
[31]
:
“
The work will
ensure that the pump station is operational and to minimise the
breakdown periods. The estimated construction costs
for the
refurbishment is R9 959 447.24 Incl VAT and the
Professional fees with disbursements is estimated at R1 593 511.56
incl VAT which means the entire project estimate is R11 552 958.79
Incl VAT.”
[25]
I accept the finding of NEP Consulting Engineers
that the JV did not comply with the bid requirements and
specifications and that its bid was rendered non-responsive for the
following reasons:
[32]
“
JV CSD –
Bank name incomplete not verified
Leading Party CIDB –
No 4ME PE grading
JV CIDB – No 1ME PE
grading
No company Profile
submitted for both Leadings Party and JV.”
The BEC seemed to have
ignored these findings notwithstanding the fact that the engineers’
report is part and parcel of the
BEC report
ex facie
the first
page thereof. The JV’s failure to submit company profiles was
simply overlooked. The first respondent had no inherent
power to
condone non-compliance with peremptory requirements.
[26]
The applicant explained in my view authoritatively why the work
tendered for required qualification
in both civil and mechanical
engineering and this explanation appears to be inherently probable.
The tender notices referred to
herein make it abundantly clear that
registration with the CIDB in both CE and ME Class of construction
works are required to be
eligible. I quote
verbatim
from
annexure “AA1”, the document so heavily relied upon by
the first respondent:
“
Only tenderers who
are registered with CIDB
in
both
CE
and ME Class of Construction Works (5 CE/5 ME or higher. 4 CE / ME PE
(Potentially Emerging Contractors) or higher.) are eligible
to submit
tenders.”
[33]
(Emphasis
added)
[27]
It was argued on behalf of the first respondent that even if the
award of the tender to the JV
could be set aside, the applicant would
in any event not qualify to be appointed bearing in mind the value of
the contract, being
for a maximum of R10 million while the
applicant’s tender was in excess of R15 million. This aspect
needs not to be debated
at this stage as it is evident that even the
JV tendered in excess of R11 million, but after negotiations the
parties came to an
agreement in respect of a much lower amount.
[28]
Prima facie
the applicant proved:
28.1 That a
material and mandatory condition of the tender requirements had not
been complied with and that the first respondent
was not empowered to
condone that;
28.2 Relevant
considerations have not been considered and the decision to award the
tender to the JV was influenced by an
error of law;
28.3 No reasonable
person could have come to the conclusion arrived at.
[29]
I am satisfied that the applicant has proven
a prima facie
right, bearing in mind the facts averred by the applicant which were
not disputed by the respondent. Furthermore, the facts set
up by the
first respondent did not throw any serious doubt upon the applicant’s
case. Having come to this conclusion, I seriously
considered the
requirements referred to above in light of the OUTA judgment of the
Constitutional Court.
Irreparable
harm
[30]
I am satisfied that if
interim
relief is not granted the
applicant stands to suffer irreparable harm. If the applicant is
eventually successful with its review
application, the contract works
might have been concluded by then and in such a case, the applicant
will be saddled with a hollow
judgment.
Balance
of convenience
[31]
I take into consideration that the contract which
has been entered into with the JV was concluded in essence
on behalf
of the public. It is the public of Bultfontein/Phahameng who will
suffer as a result of an improper sewerage system which
will remain
unresolved pending finalisation of the review application.
[32]
The first respondent makes an issue of the fact
that the construction works must be finalised by the end
of June
2022. However, it is the first respondent that delayed issues for a
long time. I pointed out above that the business plan
for the works
is dated 23 March 2021. I have no doubt that a real need for the
refurbishment of the system was established long
ago and
consequently, the first respondent shall not be heard to say that the
balance of convenience does not favour the applicant.
I say this
without being insincere towards the local public, but it is all too
often experienced that organs of state drag their
feet and when a
disgruntled bidder seeks relief, that party is accused of delaying
finalisation of important infrastructure.
[33]
Mr Ayayee relied on my judgment in
HT
Pelatona Projects (Pty) Ltd v Dihlabeng Local Municipality and
Others
[34]
in which case I dismissed an application for
interim
relief pending finalisation of a review application. As in this case,
I also considered the OUTA judgment carefully in order to
establish
to which extent an
interim
order will intrude on the exclusive terrain of another branch of
government. The facts in that case are not on all fours with the
facts
in
casu
.
I mention just two differences, to wit firstly, the fact that there
was an urgent need to provide water to the drought-stricken
community
of several Free State towns and secondly, the enormous costs to
import materials from overseas in the future, bearing
in mind the
foreseeable decline of the Rand and the consequent negative effect on
the public purse if a new tender process had
to be ordered.
[34]
In considering the balance of convenience I weighed the prejudice to
the applicant if the
interim
order is not granted, against the
prejudice to the respondents if it is granted. I am satisfied that a
strong
prima facie
case has been made out and that this is one
of the “clearest of cases”. The first respondent
has made payment
of millions of rands to suppliers without being
contractually or otherwise bound to do so. These materials will not
become wasted
if the review application eventually succeeds. The JV
members are not properly qualified and experienced. If they fail to
carry
out the works effectively the public and first respondent will
suffer as the defective works will have to be remedied at great
costs.
No
satisfactory alternative remedy
[35]
There is no alternative satisfactory remedy. A claim for damages is
in my view not a suitable
alternative remedy. The applicant requested
an undertaking from the first respondent to suspend the
implementation of the tender,
but it refused.
VIII
CONCLUSION
[36]
I conclude therefore that the applicant has proven the four
requisites of an
interim
interdict and consequently, relief
shall be granted as requested.
[37]
During oral argument I requested counsel to
provide me with suitable dates for the hearing of the review
application in the event of a finding that an
interim
interdict should be granted. I considered three dates which were
provided to my secretary by the reviews clerk and both counsel
indicated that the one date, to wit 1 August 2022, suited both of
them. I took it upon myself to act as a case management judge
in the
circumstances in the hope that the dispute can be finalised as soon
as possible and in order to inconvenience the public
as least as
possible; consequently, truncated time periods shall be provided for
finalisation of the intended review application.
IX
COSTS
[38]
Although costs are generally granted to the successful party, I
decided to let costs stand over
to be adjudicated during the review
application. There is always a possibility that facts may be
presented to the review court
which, if averred in this application,
might have influenced the award of costs or even the outcome of the
application.
X
ORDER
[39]
The following order is issued:
1.
The applicant’s non-compliance with the rules of court is
condoned and
the application is heard as a matter of urgency in terms
of the provisions of Rule 6(12);
2.
Pending the final adjudication of a review application to be
instituted on/or
before 27 May 2022, the respondents are interdicted
and restrained from in any way further implementing or acting upon
the decision
of the first respondent to award the public tender
number:
SCM/TSW/11/2021-2022:Bultfontein/Phahameng Refurbishment
of Sewer Pumpstation
to the joint venture of second and third
respondents.
3.
The order in paragraph 2 above shall serve as an
interim
interdict with immediate effect.
4.
Should the applicant fail to institute review proceedings as
contemplated in
2 above, paragraphs 2 and 3 of this order shall
lapse.
5.
The following truncated time table shall be applicable to the
applicant’s
intended review application referred to in
paragraph 2 above:
5.1
The respondents’ notice of opposition shall be filed on/or
before 3 June 2022;
5.2
The first respondent’s Record of Decision (“ROD”)
shall be filed on/or before
3 June 2022;
5.3
The applicant shall file its amended notice of motion and
supplementary founding affidavit, if
applicable, on/or before 10 June
2022;
5.4
The respondents shall file their answering affidavits, if any, on/or
before 24 June 2022;
5.5
The applicant shall file its replying affidavit, if so advised, on/or
before 1 July 2022;
5.6
The applicant shall file its heads of argument on/or before 6 July
2022;
5.7
The respondents shall file their heads of argument on/or before 8
July 2022;
5.8
The review application shall be heard on 1 August 2022.
6.
The costs of this application are reserved for adjudication during
the review
application.
JP
DAFFUE J
On
behalf of the Applicant:
Adv S Grobler SC
Instructed
by:
Peyper Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:
Adv A Ayayee
Instructed
by:
Majavu Inc
c/a Rampai Attorneys
BLOEMFONTEIN
[1]
Act
117
of 1998
[2]
Annexure “HT2”, Annexure “HT18” and Annexure
“HT19” attached to the Founding Affidavit, pp
30, 82 &
83 respectively, read with Annexure “AA1” to the
Answering Affidavit, p 137
[3]
Annexure “HT5”, pp 35 - 43
[4]
p 137
[5]
Para 137 of the Answering Affidavit, p 129
[6]
Setlogelo
v Setlogelo
1914
AD 221
at 227
[7]
[1998] ZASCA 79
;
1999
(1) SA 217
at 228 G – H
[8]
1955
(2) SA 682
C at 688 F – 689 C
[9]
2012
(6) SA 223
(CC) para 44
[10]
Ibid,
para 46
[11]
Ibid,
paras 65 & 66
[12]
Answering
Affidavit: Annexure “AA3”, pp 149 & further
[13]
Ibid,
p 156
[14]
Tender
notice and invitation to tender: Annexure “HT2”, p
30
[15]
Answering
Affidavit: Annexure “AA1”, pp 137 & 138
[16]
32
of 2002
[17]
Annexures
“HT8” & “HT9”, pp 64 - 66
[18]
Annexures
“HT10” & “HT11”, pp 67 - 71
[19]
Annexure
“HT13”, pp 74 & 75
[20]
Annexure
“HT15”, PP 77 & 78
[21]
East
Rock Trading 7 (Pty) Ltd and Anther v Eagle Valley Granite (Pty) Ltd
and Others
[2012]
JOL 28244
(GSJ) at paras 6 – 8,
GPCM
v Minister of Home Affairs and Others
2020
(3) SA 434
(GP) paras 7 – 9 and
Mogalakwena
Local Municipality v The Provincial Executive Council, Limpopo and
Others
(2014) JOL 32103
(GP)
paras
63 & 64
[22]
2001
(3) SA 1247
(SCA) paras 37
et
seq
,
see also
Darson
Construction (Pty) Ltd v City of Cape Town and Another
2007 (4) SA 488
(C) at 506 E – H & 509 G – 510 G
[23]
[2001] ZACC 8
;
2002
(2) SA 715
(CC) at para 49
[24]
Act 108 of 1996; and see
Metro
Project CC and Another v Klerksdorp Local Municipality and Others
2004 (1) SA 16
(SCA) at paras 11 – 13 and numerous judgments
thereafter,
inter
alia
Millennium
Waste Management (Pty) v Chairperson Tender Board: Limpopo
Province and Others
2008 (2) SA 481
(SCA) at paras 17 - 21
[25]
5 of 2005
[26]
[2007] 3 All SA 115
(SCA) at para 2
[27]
Founding Affidavit: para 38 read with Annexure “HT2”,
p 30 and Annexures “HT18” & HT19”,
pp 82 &
83 and Annexure “AA1”, p 137
[28]
Annexure “AA4”, pp 191 and further
[29]
pp
35 and further
[30]
Annexure
“AA4”, pp 194 and further
[31]
para
1.1.1
[32]
Para 3 of the report, p 41
[33]
p 137
[34]
(5606/2015)
[2016] ZAFSHC 34
(4 February 2016)