IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 16266/2024
In the matter between:
WASTEWANT WASTE MANAGEMENT (PTY) LTD
Applicant
and
CITY OF CAPE TOWN
First Respondent
RESOURCE INNOVATIONS AFRICA (PTY) LTD Second Respondent
Coram: Acting Justice A Montzinger
Heard: 04 September 2024
Delivered electronically: 10 September 2024
JUDGEMENT
Montzinger AJ:
Summary Introduction
1. The applicant approached this court urgently, seeking interdictory relief to
stop the first respondent ("the City") from implementing a tender it awarded to
the second respondent, Resource Innovations Africa (Pty) Ltd (“Resource
Innovations”).
2. Both the ap plicant and Resource Innovations operate in the waste
management industry, providing services related to the collection,
transportation, and processing of waste, as well as managing waste facilities.
The Kraaifontein Materials Recovery Facility (“Kraaifont ein MRF”), under the
control of the City, is currently managed by the applicant in terms of a written
agreement due to terminate on 30 October 2024.
3. Anticipating the need for a service provider after 30 October 2024, the City
published a call for tenders for the collection of co -mingled dry recyclables
from the North -Eastern Metropolitan areas and the operation of the
Kraaifontein MRF. Both the applicant and Resource Innovations submitted
tenders. On 9 April 2024, Resource Innovations was appointed as the
successful tenderer. The applicant’s tender was disqualified as non -
responsive early in the process. Consequently, Resource Innovations is set to
begin its services at the Kraaifontein MRF on 1 November 2024.
4. Dissatisfied with its disqualification, the applicant lodged an internal appeal on
29 April 2024, which was dismissed on 11 June 2024. Subsequently, the
applicant launched the present application on 23 July 2024, seeking, under
Part A, an interim interdict restraining the City and Resource Innovations from
implementing the awarded tender. Additionally, the applicant sought a
declaratory order that the City’s cancellation notice, issued on 5 July 2024,
was unlawful and invalid as it failed to provide the required three months'
notice per their existing c ontractual arrangement. The interim relief was
sought pending the outcome of the administrative review proceedings in Part
B of the notice of motion . In the anticipated review the applicant is asking for
the review and setting aside of the City’s decision to disqualify it and for a
remittal of the tender for reconsideration by the City’s Bid Evaluation
Committee.
5. This application came before me on 8 August 2024 and was opposed by both
respondents. I postponed the matter by agreement to 5 September 2024 to
allow for supplementary affid avits and written submissions. Oral arguments
were heard on the postponed date.
Procedural Issues
6. Two key procedural issues arose: urgency and the applicant’s standing to
seek an interdict.
7. Regarding urgency. While the parties agreed on urgency, it remains for the
court to assess 1. The applicant's case for urgency is based on the upcoming
handover to Resource Innovations on 1 November 2024. While the applicant's
argument that this would lead to "entrenchment" was not convincing, the
urgency lies in the need for certainty regarding whether the applicant should
continue services at the Kraaifontein MRF. Moreover, the relief sought —
suspending the tender’s implementation —necessitated an immediate hearing
and the applicant would not have been afforded substantial redress in due
course2.
8. Regarding standing3, Resource Innovations' counsel, Mr. Brink, argued that a
tenderer whose bid was declared non -responsive lacks standing to challenge
the tender. Although Mr. Brink could not refer me to case law at the time his
submission is supporte d by a similar approach in Rodpaul Constructio n4,
which concluded that a non -responsive tenderer no longer holds a legally
protected interest in the tender. On the issue of standing I had to assume that
the challenge a non-responsive tenderer wishes to bring is justified5.
9. Furthermore, I am bound by the Constitutional Court’s decision in Giant
Concerts6 and the subsequent ruling in WDR Earthmoving7 . Both judgments
1 Rule 6(12).
2 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo and Others [201] 4 All SA
67 (GP) at paragraphs 64 and 65
3 See Hoexter Administrative Law in South Africa 2 ed (Juta & Co, Cape Town 2012) at 488 : The
issue of standing is divorced from the substance of the case. It is therefore a question to be decided in
limine [at the outset], before the merits are considered.
4 Rodpaul Construction CC t/a Rods Construction v Ethekwini Municipality & others [2014 JDR 1122
(KZD)] (“Rodpaul Construction”)
5 Paras: 29, 30, 32 and 43 of Giant Concerts read with paras 15 and 16 of WDR Earthmoving
6 Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others (CCT 25/12) [2012] ZACC 28; 2013
(3) BCLR 251 (CC) (29 November 2012) (“Giant Concerts”)
7 WDR Earthmoving Enterprises and Another v Joe Gqabi District Municipality and Others (392/2017)
confirmed that a non -responsive tenderer retains standing to challenge a
tender if the award affects its personal interests. In my view this is the position
irrespective whether an unsuccessful and /or non-responsive tenderer wishe s
to challenge the decision by way o f an administrative review or launch interim
interdictory proceedings. I cannot follow Rodpaul Construction as I am bound
by the Constitutional Court decision of Giant Concerts and the Supreme Court
of Appeal judgement of WDR Earthmoving.
10. The applicant therefore has standing to seek the review and setting aside of
the decision to declare its tender offer as non-responsive, and also the award
of the tender to Resource Innovations. It follows that it also has standing to
pursue interim interdictory relief linked to its review right that it hopes to
vindicate in the subsequent review.
Preliminary issues
11. Before addressing the legal principles regarding interdicts, I must resolve two
preliminary issues raised on the papers and during argument.
Declaratory relief in respect of the defective notice
12. In its notice of motion, the applicant initially sought an order declaring that the
early cancellation notice dated 5 July 2024, issued by the City, was unlawful
and invalid. The applicant’s issue with the notice was its non -compliance with
the terms of the agreement between the parties. The notice provided only two
months' notice for the termination of the agreement (i.e., the end of
September 2024), whereas the parties had agreed to a three -month notice
period (i.e., the end of October 2024) from the date a new contractor would be
appointed.
13. By the time the interdict was argued, the applicant no longer pursued the
declaratory relie f regarding the notice with much vigour. However, the
[2018] ZASCA 72 (30 May 2018) (“WDR Earthmoving”)
applicant did not concede that the issue was moot, arguing that the 5 July
2024 notice, by reliance on Oudekraal8, remained valid until set aside by a
court. I disagree with the applicant’s categorisat ion of the letter and instead
endorse the respondents' position that the 5 July 2024 notice does not
constitute administrative action. The fact that the original contract between the
parties stemmed from an administrative process does not transform the notice
into administrative action or a decision. The relationship between the
applicant and the City was governed by principles of contract law, and the
notice was issued in accordance with that contractual relationship9.
14. Therefore, as the notice does not constitute administrative action or a
decision, the City was entitled to withdraw the defective notice and issue a
new compliant one, which it did. As a result, the relief sought concerning the
defective notice is moot.
Applicant to continue to perform the work – par 3.2 of notice of motion
15. As mentioned, the applicant is the incumbent service provider under an
agreement concluded with the City. That agreement is set to terminate on 30
October 2024, and the City has given the applicant three months' notice to
vacate the Kraaifontein MRF.
16. During argument, I expressed the view that, in the context of this matter, I was
not inclined to grant relief that would interfere with the City's functions. Mr. De
Waal SC acknowledged that the relief was sought merely to give the City the
option to continue using the applicant’s services at the Kraaifontein MRF if the
interdict was granted, pending the finalisation of the review. However, without
conceding, the relief Mr. De Waal took the position that the applicant did no t
need this specific relief for the interdict to succeed, a stance with which I
agreed.
8 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)
9 Based on the authority of Government of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd
2009 (1) SA 163 (SCA); [2009] 1 All SA 349 (SCA) par 18 read with Cape Metropolitan Council v
Metro Inspection Services (Western Cape) CC and Others 2011 (3) SA 1013 (SCA) par 18 further
read with para 9 – 10 of Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA).
17. In my view, in a matter like this, a court should not interfere with the executive
powers and duties of a state functionary or organ of state by selecting a
contracting party to continue the work, even if an interdict preventing the
implementation of the awarded tender is granted. The two scenarios can
coexist: a court may issue an interdict halting the implementation of the tender
without ordering that the incumbent con tinue. This approach allows the court
to avoid overstepping into the functionary's domain while granting the
functionary the discretion to either request the court to allow the incumbent to
continue providing services to prevent a disruption or make other interim
arrangements to ensure the continuity of service or of the project.
18. Furthermore, although rare, there may be instances where a court grants an
interim interdict staying the implementation of a tender while simultaneously
issuing an order that effec tively selects a contracting party for the state
functionary to continue the work pending the review. This might occur when
the tender relates to a specific, time -limited project and there is a significant
risk of irreparable harm to the public due to a po tential service interruption. It
could also apply where there is clear evidence of gross, obvious, and clear
infringements of the incumbent’s administrative rights, akin to the "clearest of
cases" test endorsed by the Constitutional Court10.
19. In this matter, the City has not requested the applicant to continue rendering
services if the interdict is granted. Instead, the City has indicated its
preference for the successful tenderer to assume its duties. Additionally, the
tender relates to an ongoing ser vice and is not project-specific or time-limited.
The record shows that the City has used external service providers for at least
the past 14 years, and it will likely continue doing so unless it chooses to bring
the service in-house.
20. Therefore, the fact t hat Resource Innovations will begin and continue
providing services at the Kraaifontein MRF from 1 November 2024 should not
10 National Treasury
affect the applicant's review rights or its ability to obtain an effective remedy
should the review succeed. Lastly, even under a ge nerous interpretation of
the applicant’s complaint regarding its treatment during the tender process, I
cannot find any gross, obvious, or clear infringement of administrative rights
that would meet the 'clearest of cases' standard.
21. I therefore find that g ranting the relief in paragraph 3.2 of the notice of motion
would infringe upon the City’s powers and violate the principle established in
National Treasury11.
The legal principles – interim interdicts
22. To determine whether the applicant has made out a case for an interim
interdict, the well-established principles set out in Setlogelo12 and later refined
in Webster13 and Gool14 provide a useful framework. These principles have
been consistently applied, even in the context of South Africa's changed
constitutional dispensation, as confirmed in National Treasury15.
23. The applicant must demonstrate that it has a prima facie right. This right need
not be established definitively, but there must be sufficient evidence of its
existence to warrant protection, even if it is open to some doubt.
24. The next requirement is that the applicant must show a well -grounded
apprehension of irreparable harm. This harm must be of a kind that cannot be
adequately remedied by other means, such as monetary compensation, and
must be likely to occur if the interdict is not granted. The test is objective,
asking whether a reasonable person in the applicant's p osition, confronted
with the same facts, would apprehend the probability of harm 16. The harm
11 National Treasury and Others v Opposition to Urban Tolling and Others 2012 (6) SA 223 (CC) par
64 (“National Treasury”)
12 Setlogelo v Setlogelo 1914 AD 221 (“Setlogelo”)
13 Webster v Mitchell 1948 (1) SA 1186 (WLD) (“Webster”)
14 Gool v Minister of Justice and Another 1955 (2) SA 682 (CPD) (“Gool”)
15 National Treasury
16 Mcilongo v Minister of Law and Order 1990 (4) SA 181 (E)
must also be of such a nature that waiting for final relief would render the
applicant’s position untenable.
25. Next, the balance of convenience must be weighed. This involves considering
the prejudice the applicant will suffer if the interdict is not granted against the
prejudice the respondent will suffer if it is granted. In addition to the parties'
respective interests, the court must also consider any broader publ ic interest,
particularly when the respondent is a state functionary or organ. The stronger
the applicant’s prospects of success in the main application, the less the
balance of convenience needs to favour the applicant. Conversely, if the
applicant’s case is weaker, a greater balance in favour of the applicant is
necessary17.
26. Another important requirement is whether the applicant has an adequate
alternative remedy. The interdict being an extraordinary remedy 18, it should
only be granted if no other effective remedy is available to the applicant. If
another avenue of redress exists that would adequately protect the applicant’s
interests, the court should refuse the interdict.
27. In National Treasury , the court emphasi sed that the constitutional context
adds an additional layer to the analysis. Where the right asserted is grounded
in the Constitution, it may be redundant to question the existence of the right.
Furthermore, when the respondent is a state organ, the balance of
convenience must take into account the impact of the interdict on the
constitutional and statutory powers of that organ, includi ng any potential
separation of powers issues. The court must carefully evaluate whether an
interim order would unduly interfere with the functions of another branch of
government and whether such an order is warranted in the circumstances.
28. Finally, even wh en all the requirements for an interim interdict are met, the
court retains a discretion to grant or refuse the relief. This discretion must be
exercised judicially, taking into account all relevant factors, such as the
17 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D)
18 National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 (3) SA 1092 (T)
relative strength of the parties' ca ses, any undue delay in bringing the
application, and the public interest. Importantly, if any one of the four
requirements is not satisfied, the court has no discretion to grant the
interdict19.
29. These considerations are not isolated; they are interrelated and must be
considered holistically. For example, if the applicant's prospects of success
are strong, less reliance may be placed on demonstrating the balance of
convenience20. Conversely, if there is uncertainty regarding the applicant’s
right, the need to demonstrate irreparable harm and a favourable balance of
convenience becomes more significant. The court must assess the affidavits
and evidence as a whole, considering all the factors in their proper context.
30. With these considerations in mind I now turn to the evaluation of the
applicant’s case for an interim interdict.
Evaluation
31. Based on the submissions and the case presented in the papers, I will focus
on three of the four requirements for an interim interdict: the applicant's prima
facie right, irreparable harm, and the balance of convenience.
Prima Facie Right
32. In support of the prima facie right requirement the applicant asserts that it s
right is anchored on the allegation that the City ’s tender process was flawed
and violated its right to a fair, transparent administrative action. The
contention was that the interim relief is necessary to protect the applicant’s
rights under PAJA 21 and section 217 of the Constitution. The argument went
further that if the interdic t is not granted the review may be rendered moot in
the sense that the applicant may not be able to effective relief in the review.
19 Knox D'Arcy Ltd v Jamieson 1996 (4) SA 348 (A)
20 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D)
21 Promotion of Administrative Justice Act 3 of 2000 (“PAJA”)
33. Except referencing the rights under PAJA and s 217 of the Constitution
nothing else is said to give substance to the prima right on which the applicant
relies. The respondents’ counsel therefore rightfully enacted reliance on the
Constitutional Court dicta in National Treasury that a prima facie right in the
context of an interim interdict must be more than just the right to approach a
court for review; it must be a right that, if not protected by an interdict, would
result in irreparable harm.
34. On closer scrutiny it appears as if the applicant’s claim that it had established
a prima facie right requires more focus. Firstly, the applicant contends that its
review right will ring hollow as there is not a damages remedy 22, whether for
out-of-pocket expenses or lost profits, even if it should succeed with its
review. So, the right the applicant is relying on is the potential of a future
ineffective relief in the review. To bolster this argument the applicant relies on
the allegation that the start-up costs for implementation of the tender will be in
the region of R 15 million. The applicant extrapolates this investment to also
apply to Resource Innovations and asserts this would make it difficult for
Resource Innovations to recoup its investment should the tender be reviewed
and set aside in a few mont hs from now. This, the applicant asserts, would
further complicate the prospect of effective relief if the review succeeded as
Resource Innovations would argue at that stage that it should be allowed to
continue to recuperate its investment. A similar basi s is relied on in respect of
the harm the applicant claims it will suffer.
35. It appeared to me that the applicant aimed at establishing a prima facie right
similar to the approach adopted by Binns -Ward J (as he then was) in City of
Cape Town v SA National Road Agency 23 (although the judgement was not
relied on) where the learned judge said the following:
22 Unless there is fraud with the allocation of the tender as per Minister of Finance v Gore NO 2007 (1)
SA 111 (SCA).
23 City of Cape Town v South African National Roads Agency Ltd and Others (6165/2012) [2013]
ZAWCHC 74 (21 May 2013) at para 78
“71. Correctly identifying the right in issue as something distinct from the
right to approach a court to vindicate it on judicial review is not to say
that the right to an effective review remedy is not a relevant
consideration. On the contrary, the Constitution contemplates that
effective remedies should be available for breaches of constitutional
rights, including, of course, the fundamental rig ht to lawful, reasonable
and procedurally fair administrative action. It is trite that the
implementation of unlawful administrative decisions can sometimes lead
to practical results that can render the remedy of judicial review so
ineffectual that a court will decline to grant it ; cfChairperson, Standing
Tender Committee and Others v JFE Sapela Electronics (Pty) Ltd and
Others 2008 (2) SA 638 (SCA). Thus evidence that the obtaining of an
effective remedy will be thwarted if interim relief is not forthcoming is a
relevant consideration under the concepts of irreparable harm and the
balance of convenience.” [underlining added for emphases]
36. A court should give due regard to an application for interim relief, barring that
an applicant makes out a case for the other requirements as well, where
reliance is placed on the review right premised on evidence that the remedy in
the ultimate review will be rendered ineffectual. The court’s approach in City
of Cape Town v SA National Road Agency is sensible, constitutionally
infused, and is in my view in harmony with National Treasury.
37. Furthermore, the Constitutional Court in Esorfranki24 has held that a tenderer
in the position of the applicant is, in appropriate circumstances, entitled to
claim for loss of profit under PAJA. Further, an order setting aside a decision
and remitting it to the decision -maker for a fresh determination or, in
exceptional circumstances, an order of substitution will suffice to vindicate the
interests of both the public and the aggrieved tenderer. However, where the
state’s misconduct is deliberate and dishonest and where substitution or
remittal are not viable forms of relief, or where this relief will not suitably
24 Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality (CCT 222/21) [2022] ZACC 41; 2023 (2)
BCLR 149 (CC); 2023 (2) SA 31 (CC)
remedy the loss sustained by a party, circumstances may require
compensatory relief in order to ensure a just and equitable result.
38. However, in this matter the applicant has failed to present persuasive
evidence to convince me that its review right will be rendered hollow and that
it will not receive effective relief should it succeed with the review. The only
facts alleged that addresses this consideration is the allegation that Resource
Innovations would be so entre nched by the time the review is finalised and
would not have recuperated its anticipated investment of R 15 million that a
court will be reluctant to grant relief that would compensate the applicant for
having lost out on the tender that was unlawfully awa rded to Resource
Innovation.
39. There are a few difficulties with this speculative proposition. Firstly, Resource
Innovations denies that it will need or invest R 15 million as start -up costs.
Apparently, it will require significantly less as it already has the resources to
take over the role as service provider at the Kraaifontein MRF. Secondly, the
applicant, on its own version, has been on this site managing the Kraaifontein
MRF for approximately 18 - 24 months. It has not presented or made the case
that it could not recuperate its investment of R 15 million over that period. The
only conclusion I can draw from that is that ei ther the R 15 million upfront
investment claim is inflated or a party can in fact recuperate it in a short er
period than 3 years. Thirdly, the tender in this instance, although limited to 3
years, is not project specific similar to a construction project t hat has a start
and an end and for which a new tender can not be issued once the project is
completed. In this instance t he service is ongoing and will still be required by
the time the review is finalised. It is also inconceivable that the City, if the
review succeeds, would publish a tender for a shorter period of 3 years.
Having regard to the nature of the services required at the Kraaifontein MRF it
makes sense that a period of 3 years is appropriate. There is nothing to
suggest that substitution or remi ttal will not be viable forms of relief by the
time the review is heard. Having regard to the Esofranki decision the
applicant, even in the absence of substitution or remittal being a viable option,
should it succeed with the review, would not be out of a remedy.
40. Furthermore, in this division it is not an uncommon practice that the parties
can expedite the review hearing to the extent possible by approaching the
Acting Judge President for a preferent date. If appropriately motivated such a
date can be pro vided which would limit an ‘entrenchment’ argument or a long
delay in the finalisation of the review that would render effective relief
nugatory.
41. I am therefore, not persuaded that the applicant’s prima facie of the right to
review a decision which is tied to the possibility of ineffective relief at the
conclusion of the review, in this instance justify the grant of interim interdictory
relief.
42. The other basis for establishing a prima facie right the applicant asserts that it
has g ood prospects to succeed with the review . However, similar to the
approach in National Treasury25, although I heard full argument on the merits
of the review grounds, I decline to be drawn into this analysis for three
reasons. I have already found that the applicant has failed to establish a prima
facie right that cannot be vindicated at the review. Secondly, it is not possible
for me to make a finding on whether the review grounds will succeed at the
review. Thirdly, as I am also of the view that the appli cant has failed to make
out a case on both harm and the balance of convenience it is not necessary to
delve into the cogency of the review grounds. It is better left to the review
court to decide.
Irreparable harm
43. For the reasons that follow I find that the applicant has failed to establish harm
that requires protection pending the review. The case for harm on the papers
unfortunately does not rise to a degree that requires protection pending the
outcome of the eventual review.
25 Par 48
44. In my attempt to assist the applicant to give better substance to its case to
establish the requirement of a prima facie right by borrowing from the
approach the court followed in City of Cape Town v SA National Road Agency
I have dealt with the issue of the applicant’s claims that it will not obtain
effective relief when the review is eventually heard.
45. In my view the applicant’s difficulty in this matter is that its harm is difficult to
identify as a result of the nature of the tender. This is not a situation where the
tender is of such a nature that it would run its course by the time the review is
heard and decided on. This is also not analogous to a construction work
whereby the time the review is adjudicated it would be impractical or pointless
for a fresh contractor to take over the works. This tender is of ongoing nature,
and should the applicant be vindicated in the review, the tender would be set
aside and should it be able to then take part in the fresh tender proceedings.
46. The applicant has therefore failed to establish harm that is worthy of
protection pending the finalisation of the review. Considering my finding, it is it
not necessary to consider or pronounce on the issue of separation of power
harm.
Balance of Convenience
47. In respect of this requirement , the applicant submits that the balance of
convenience favours the applicant, the public interest and the rights of its 283
employees, many of whom would face retrenchment if Resource Innovations
would take ove r the Kraaifontein MRF on 1 November 2024. The applicant
also relies on the claim that it would be unfair to expect Resource Innovation s
to start the tender and a few months from now have to lose its investment if
the review succeeds.
48. The City and Resource Innovation s argue that the balance of convenience
rather favours the contract to proceed on 1 November 2024. They emphasise
the public importance of the services covered by the tender and the potential
financial implications for the C ity if the implementation of the tender is
delayed. The respondents also highlight that the applicant has the option to
pursue a review on an expedited basis, which would mitigate any potential
prejudice.
49. Having regard to what I have found that the applicant’s review right is well
protected and can be vindicated the balance of convenience weigh heavy
against granting an interdict. The fact that 283 employees may lose their
livelihoods is a relevant consideration, but the scale still tips in favour of the
respondents. Resource Innovation s will take over a significant amount of
these employees as it is required by the tender, also, the applicant could not
have expected to continue with the contract post November 2024. As soon as
the call for tenders was published, the applicant should have been prudent
and inform its employees that alternative measures had to be implemented to
prevent large scale retrenchments.
50. The City also contended that granting the interdict would prevent Resource
Innovations from performing its obligations under the validly awarded tender,
which would also allow the City to achieve cost savings of approximately R
600,000 per month. Resource Innovations echoes these concerns, arguing
that it would suffer significant financial harm if it is prevented from proceeding
with the contract it has already begun preparing for. The parties are in
different positions. The applicant should have and had months to prepare for
the possibility that it may have to leave the site at Kraaifontein MRF.
Resource Innovations only had a few months since the outcome of the appeal
to prepare the take-over. It is now ready to do so, and it will be highly
prejudicial to expect it to unwind that clock.
51. For all these reasons I am not persuaded that the balance of convenience
favours the applicant for the granting of an interdict.
Costs
52. On costs Resource Innovations requests a punitive cost order, arguing that
the applicant has attempted to mislead the court by selectively presenting
facts and omitting critical information that undermines its case. Resource
Innovations also took issue that the applicant initially built its urgency on the
basis of a cancellation lette r, which the relief in respect thereof was no longer
pursued by the time of the hearing.
53. The applicant relying on Biowatch26 argues that no costs should be granted as
it was asserting a constitutional right, while the respondents argue that the
application, if dismissed, does not attract the protection of Biowatch. Some
issue was raised about whether Biowatch applies at interim proceedings
stage. In my view it is irrelevant whether a litigant applies for interim or final
relief. The court should be guided by the principle in that Biowatch endorses.
This will apply to any legal proceeding regardless of whether its interim or
final.
54. Although the applicant’s case was fundamentally aimed at obtaining an
interim order to seize the implementation of the tender, the matter still turn on
having regard to the constitutional issue relevant in a review application. The
interim interdict was squarely premised on the basis of the applicant not being
able to obtain an effective remedy in the review. I am thus satisfied that
although the application had many difficulties to overcome it is directly
associated with the main relief that is a constitutional issue. There is also no
allegation that the applicant’s conduct was of such a nature that it should be
deprived of Biowatch protection27.
Conclusion
55. In conclusion, I find that the applicant has not established a sufficient basis for
the granting of interim relief . While the applicant has raised concerns about
the fairness of the tender process, these concerns can be adequately
addressed through the review process without the need for interim relief. The
26 Biowatch Trust v Registrar, Genetic Resource [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10)
BCLR 1014 (CC) (“Biowatch”)
27 SMEC South Africa (Pty) Ltd v City of CapeTown and Others; SMEC South Africa (Pty) Ltd v City of
Cape Town and Others (8277/2021;14097/2021) [2022] ZAWCHC 131 (23 June 2022)
applicant is also protected from not being in a position at the end of the review
that it will not have an effective remedy available to it.
56. Accordingly, I make the following order:
1. The applicant’s non -compliance with the Uniform Rules of Court
relating to forms, time periods and service is condoned and the
applicant is granted leave to move this application on an urgent
basis.
2. The application for interim relief (‘the Part A relief’) is dismissed with
the parties to bear their own costs.
3. Part B of the application is postponed sine die.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicant’s counsel: Mr. De Waal SC
Applicant’s attorney: Rubenstein Attorneys
First Respondent’s counsel: Mr Rosenberg SC, Mr. Toefy
First Respondent’s attorney: Cluver Markotter Inc.
Second Respondent’s counsel: Mr. Adam Brink
Second Respondent’s attorney: Harmse Kriel Attorneys