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DORMAC (PTY) LTD Fourth Respondent
(Registration number 2008/001056/07)
PRO AUTO RUBBER CC Fifth Respondent
(Registration number 2010/129334/23)
6SIGMA (PTY) LTD Sixth Respondent
(Registration number 2018/435091/07)
ISIPHETHU/AMABUTHO JV Seventh Respondent
STEFANUTTI STOCKS (PTY) LTD Eighth Respondent
(Registration number 2003/022221/07)
AMULET GROUP (PTY) LTD Ninth Respondent
(Registration number 2015/158294/07)
MMK GAUGES BICS ENGINEERING JV Tenth Respondent
ENELAD (PTY) LTD Eleventh Respondent
(Registration number 2017/230579/07)
AFRICA PROJECTS CONSULTANTS Twelfth Respondent
(PTY) LTD
(Registration number 2018/273082/07)
DAMIEN SHIPYARDS (PTY) LTD Thirteenth Respondent
(Registration number 2007/007944/07)
GUERRINI MARINE Fourteenth Respondent
CONSTRUCTION CC
(Registration number 1995/053307/23)
ZM SERVICES (PTY) LTD Fifteenth Respondent
(Registration number 2024/097893/07)
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JUDGMENT
FISHER J
Introduction
[1] This is the “A” part of an application relating to the review of a decision in terms
of which the applicant ’s bid under a tender put out by the first respondent,
Transnet was rejected . The dismissal of an internal appeal and the award of the
tender to second respondent, Mbali are also sought to be reviewed .
[2] The other tenderers have been cited as interested, but the only opposition i s by
the first and second respondents. I will refer to the first and second respondents
as “the respondents .”
[3] The review itself is contained in part B of the application.
[4] This “A” part of the application was brought urgently . It seeks, in essence , to
interdict the implementation of the tender pending the final outcome of the review.
[5] The “A” part of application initially came before the urgent court but was allocated
to this court to be heard as a special motion .
[6] The respondents continue to deny that matter is urgent . In light of the special
allocation and the need for certainty and finality for the parties I have decided to
entertain it on the basis that it has sufficient urgency to be heard in this context .
[7] I thus turn to the case made out in the founding affidavit.
Founding facts
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[8] The applicant conducts business in the engineering and construction industry
and has performed work on tender s for Transnet in the past.
[9] It is important that Transnet is a State Owned Company (SOC).
[10] The request for proposals (RFP) in relation to the tender was published on 31
January 2024.
[11] The tender is for the replacement of what is known as the St urrock Dry Dock
(SDD) Inner caisson gate at the port of Cape Town.
[12] On 9 May 2024 the applicant submitted its tender. This is the tender in issue.
[13] On 06 September 2024 Transnet sent a letter authored by Mr M S Hogg,
Transnet ’s executive manager : infrastructure procurement to the applicant in
terms of which the applicant was informed that on evaluation of its bid by the Bid
Adjudication Committee (BEC) was found not to meet the compulsory minimum
requirements of the tender which required the credentials of the engineer on the
project to be a Pr. Eng. Or Pr. Tech .
[14] The requirement that the Engineer on the project meet these minimum
credentials was set out clearly . It was , furthermore, made clear in the RFP
documents that non -responsive tenders in relation to these mandatory
qualifications would be disqualified.
[15] The engineer proposed by the applicant in its bid was a certain Mr
Paardenkooper who is a Control and Instr umentation Engineer .
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[16] Although Mr Pardenkoo per is very experienced in the industry and has managed
similar projects to the one in issue , it is not disputed that his qualifications do not ,
strictly speaking , meet the mandatory qualifications required un der the tender.
[17] The applicant appealed the decision notified under Mr Hogg’s letter to disqualify
it from the tender process .
[18] The grounds of appeal stated were, essentially , that Mr P aarde nkooper was an
experienced engineer ; had previously worked on caisson projects for Transnet
and was the most qualified person to conduct the works.
[19] It seems , thus, that what was conte nded for was that the bid was substantially
compliant in that the qualifications of Mr Paardenkooper were , at least,
equivalent to those required under the tender .
[20] The applicant , to drive this position home, submitted further that the tender was
similar in relation to the methodology for the works required on a previous tender
– the Robinson Drydock Tender which the applicant was awarded .
[21] Transnet explained , at some length , in its response to the appeal how the
qualifications required under the tender differed from those of Mr
Paardekooper’s . It explained further that , in its view , it did not , at law, have the
latitude to vary the criteria ex post fact o.
[22] The applicant responded by way of a letter dated 23 September 2024 which
serve d, at least in part, to amend the appeal grounds .
[23] The applicant now contended that the tender process w as not compe titive or fair
in that Transnet had abused the regulatory fram ework relating to public
procurement. This abuse , it alleged , was the imposition of the minimum
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qualification criteria for the purposes of deliberately eliminating bidders such as
the applicant.
[24] The applicant went further and alleged corruption on the part of Transnet in that
it is alleged that the award was backdated.
The arguments raised
[25] The applicant alle ges that it has met the requirements for an interim interdict .
[26] The prima facie right relied on is simply that it has a constitutional right to review
the decisions involved.
[27] It contends further that, in order to properly exercise this right of review, the status
quo must be preserved because , if this is not done , it will be met by a fait
accompli .
[28] The balance of convenience , it argues serves it. This, it says is because of the
potential irretrievable loss and the direct impact on its constitutional rights
whereas the only prejudice suffered by Transnet is a delay to the project .
[29] It submits that these considerations , taken together with the fact that it will be
difficult if not impossible to claim damages , mean s that it has no satisfactory
remedy other than the interim interdict.
[30] The applicant argue s further that it has prospects of success in the review .
[31] The respondents argue that no case has been made out for interdictory relief.
They say that this is especially so because the application impacts on conduct
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that flows from statutory powers and functions referred to in section 156 of the
Constitution.
[32] They make the point that the prima facie right as identified by the applicant is
inapposite in relation to the inquiry to be undertaken in the context of the facts
and particularl y the first defendant’s public function .
[33] A further point made by the respondents is that they intend to raise a point in
limine to the effect that the application has been brought outside of the 180 day
limit imposed by PAJA for the bringing of reviews .
[34] The argument is to the effect that if, as it appears to be the case, a central
complaint of the applicant is that the tender was drawn with the aim of
deliberately excluding the applicant, that the review should have been brought at
the stage of publicatio n of the RFP in January 2024 and not, as it was, in
September 2024 which is approximately 7 months after this publication and after
its tender was disqualified .
[35] The argument is that there should be an application for condonation in that the
application was not brought within the 180 day limit in PAJA. Such an application,
argue the respondents would have poor prospects of success.
Applicable legal principles
[36] The legal inquiry in an application for an interim interdict is well settled. The
applicant must establish prima facie the existence of a right; a well -grounded fear
of irreparable harm; that the balance of convenience is served by the interdict
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and that there is no other appropriate remedy. These are known as the Setlogelo
requirements or the Setlogelo Test.1
[37] As set out above, the applicant argues that it has met this test.
[38] However, what is not specifically addressed by the applicant is that in National
Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6)
Sa 223 (CC)2 (OUTA) the Constitutional Court put a gloss on these requirements
in circumstances where the interdict sought was against organs of state and in
restraint their statutory power.
[39] This particular prejudice , the Court termed “separation of power prejudice ”. This
conveyed that the proposed interference with the statutory function involved was
part of the general prejudice which had to be weighed in the balance.
[40] The Constitutional Court made the point in OUTA that the existence of mala
fides is an important consideration in th is inquiry. The Court quoted with
approval the decision in Gool3 as follows:
"The present is however not an ordinary application for an interdict. In the first
place, we are in the present case concerned with an application for an interdict
restraining the exercise of statutory powers. In the absence of an allegation of
mala fides the Court does not readily grant such an interdict.”4
1 Setlogelo v Setlogelo 1914 AD 221 at 227.
2 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) S A 223
(CC).
3 Gool v Minister of Justice 1955 (2) SA 682 (C).
4 OUTA at para 43 .
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[41] The Court clarified that such an interdict would be granted “only in the clearest
of cases.”5
[42] The Court furthermore, whilst not defining the “clearest of cases” pointed out that
an important consideration would be w hether the harm apprehended amounted
to a breach of one or more of the fundamental rights in the Bill of Rights.6
[43] The weighing up inquiry which a court has to engage in when determining
whether a case has been made for an interdict takes into account the prospects
of success in the review. The stronger the prospects of success the less not for
the balance of convenien ce to favour the applicants; the weaker the prospects of
success the greater the need for the balance to favour the applicants.7
[44] With these principles in mind, I move to a discussion of the merits .
Discussion
[45] In OUTA the Court put the position relating to the prejudice to the separation of
powers thus8:
“A court must carefully consider whether the grant of the temporary restraining order
pending a review will cut across or prevent the proper exercise of a power or duty that
the law has vested in the authority to be interdicted . Thus courts are obliged to recognise
and assess the impact of temporary restraining orders when dealing with those matters
5Id at para 26 and 47.
6 Id at para 47 .
7 Olympic Passenger Service Pt Ltd v Ramie an 1957 (2) SA 382 (D) at 383D -G, cited with approval in
Eriksen Motors Welkom Ltd v Protea Motors Warrenton 1973 (3) SA 685 (A) at 691F -G. See
also Simon NO v Air Operations of Europe AB 1999 (1) SA 217 (SCA) at 231G.
8 OUTA at para 6
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pertaining to the best application, operation and dissemination of public resources. 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.” ( emphasis added)
[46] The respondents argue further that the applicants have conceded that the y fell
outside of the strict requirements of the tender and that this makes their
prospects of success negligible to non -existent .
[47] The right relied on by the applicant is not correctly framed. The fact that a person
has the right of review does not , in and of itself , constitute the required right. If
this were a correct characterisation of the right then every person bringing a
review would automatically get past the hurdle of establishing a prima facie right.
This is not the law.
[48] In fact , the determination moves from the premise that State entities which are
carrying out their public function need to be free to act in this context unless there
are special considerations which are at play and which defer to the doctrine of
separation of powers.
[49] From a general perspective , as long as a State entity is carrying out its function
in good faith, it would require the clearest of cases to thwart its progress.
[50] The applicant has not shown that this is one such case and neither has it shown
that the prospects of success on the review favour it.
Order
[51] I make the following order :