REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 24 -146973
In the matter between:
MATAMELA ENTERPRI SE CC Applicant
And
GEORGE MUNICIPALITY First Respondent
MEC FOR INFRSTRUCTURE, CAPE TOWN Second Respondent
SOUTH AFRICAN LOCAL GOVERNMNET
ASSOCIATION (SALGA) Third Respondent
NOKHANYS SERVICES (PTY) LTD Fourth Respondent
MEC FOR LOCAL GOVERNMENT,
ENVIRONMENT AL AFFAIRS AND
DEVELOPMENT PLANNING Fifth Respondent
Heard: 20 December 2024
Delivered: Electronically on 2 8 January 2025
JUDGMENT
LEKHULENI J
Introduction
[1] This is an urgent application for an interdict. The application is divided into two
parts, Part A and B. In Part A, the applicant seeks an order that, pending the final
determination of the review application in Part B, the first respondent ("the
Municipal ity") be interdicted from taking any further steps towards implementing the
appointment of a building contractor to construct 100 subsidised houses in
Thembalethu in accordance with Contract Number: HS 017/24 ("the tender").
[2] The applicant also seeks an order that the Municipality be interdicted from
appointing the fourth respondent as the preferred bidder and giving effect to the
tender. In addition, the applicant seeks an order that the Municipality be directed to
re-evaluate the tender bidding of th e applicant by properly assessing the years of
experience of the applicant's Construction Manager as stated in his CV, particularly
the position he has held from 2004 to 2011 as a site agent.
[3] In Part B, the applicant seeks an order that the decision taken by the
Municipality on 19 September 2024 to award the tender to the fourth respondent be
declared unlawful and that it be reviewed and set aside in terms of the Promotion of
Administrative Jus tice Act 3 of 2000 ("PAJA"), alternatively the principle of legality.
The applicant also seeks an order in Part B that any award and or subsequent
service level agreement that may have been concluded between the Municipality
and the fourth respondent perta ining to the tender be declared unlawful and that it be
reviewed and set aside. This Court is only enjoined in deciding Part A of this
application.
The Applicant’s Case
[4] The George Municipality advertised a tender on 11 July 2024, calling upon
bidder s to submit their bidding documentation for the appointment of a building
contractor to construct 100 subsidised houses in Thembalethu. The closing date of
the said tender was 16 August 2024. Subsequent thereto, 26 bidders submitted their
bidding documenta tion. The applicant asserts that it submitted the required
documentation together with other bidders. The evaluation process was conducted,
resulting in a decision to award the tender to Nokhanya Services (Pty) Ltd, the fourth
respondent in this matter. An official intention to award the tender to the fourth
respondent was communicated to the respective bidders.
[5] The applicant stated that the tender award process occurs in two phases.
First, an intention to award the contract to a specific bidder is an nounced. Second, a
fourteen -day (14) period is allowed during which any bidding party can object to the
intended award.
[6] During the fourteen -day period objections were allowed to be noted, the
applicant objected to awarding the tender to the fourth respondent. The applicant
believed that the Municipality acted irrationally in its evaluation process in awarding
the tender to the fourth respondent. The reason given to the applicant by the
Municipality for not awarding the tender to the applicant was that the applicant failed
to comply with the requirements of the tender. The tender requirement of the
Municipality requires that a bidder for the tender must have a construction manager
with 10 years of experience in construction.
[7] The applicant states that the Municipality rejected the applicant's application
and alleged that the CV of the applicant's Construction Manager, Mr T Fhumulani,
attached to the applicant's tender documents, revealed that Mr Fhumulani only had 8
years of building projects experience. In the notice informing the applicant of the
reasons for rejecting his tender application, the Municipality asserted tha t the
applicant failed to submit the required information and could, therefore, not be
considered further in the bidding evaluation process.
[8] The applicant emphasi sed that on the tender documentation it submitted ,
there was a returnable document on wh ich the applicant listed five projects within the
provided spaces , capturing a portion of its Construction Manager ’s experience. Due
to the limited space on the returnable document, it was not possible to detail Mr
Fhumulani’s relevant project experience over the past ten years within this section
alone. To address this problem , the applicant included in its tender document s the
CV of Mr Fhumulani, its Construction Manager , which provided a complete record of
his professional experience , authenticating that he had over 10 years of experience
in construction management .
[9] According to the applicant, limiting the assessment to the returnable form ’s
constrained layout without considering the supplementary documentation resulted in
an inaccurate and incomplete evaluation of Mr Fhumulani's experience. The
applicant asserted that the Municipality excluded Mr Fhumulani's 2004 to 2011
experience as a sit e agent, which appears on his CV. If this experience had been
considered, the Municipality would have possibly awarded the tender to the applicant
as a successful tenderer. The applicant averred that prior to the 2014 Regulations, a
Construction Manager wa s referred to as a site agent.
[10] In the applicant's view, Mr Fhumulani's experience gained from 2004 to 2011
had to be considered, and the fact that it was not considered proves that the process
was irregular and must be reviewed and set aside by this Court. Had the respondent
considered Mr Fhumulani's 2004 to 2011 experience, the applicant asserts that it
would have met the 10 -year experience criteria and would have possibly been
awarded the tender. The applicant stated that Mr Fhumulani has 17 years of
experience as a Construction Manager.
[11] According to the applicant, the failure to adequately consider its Construction
Manager ’s experience despite demand and an Appeal of the applicant demonstrates
an intention on the part of the Municipality to u nlawfully deprive the applicant of what
would have been a lawful appointment. Furthermore, the applicant contended that
the Municipality's memo stating that the applicant’s reference letter from the Western
Cape Department of Human Settlement was not specific was incorrect. The
applicant refuted these allegations and stated that it included a n adequate reference
letter from the Western Cape Department of Human Settlement as part of its tender
documents submitted to the Municipality.
[12] The applican t disputed the Municipality's claims set out in the rejection letter.
In the letter rejecting the applicant’s appeal, t he Municipality pointed out that Mr
Fhumulani's CV listed him as a Senior Project Manager, while some of the
applicant's bid documents re ferred to him as a Construction Manager. The applicant
emphasised that Mr Fhumulani's experience as both a Construction Manager and a
Senior Project Manager was crucial, as senior project management experience is
necessary for this tender.
[13] The applicant asserted that the process the Municipality invoked is invalid and
unlawful and, as such, establishes the grounds for review listed in section 6 of PAJA.
The applicant contended that the process was flawed, affecting the validity of the
entire tender process. The non -consideration of Mr Fhumulani's experience offends
the right to just administrative action, which is lawful, reasonable and procedurally
fair and thus is subjected to review based on PAJA, alternatively, the principle of
legality. According to the applicant, this would ensure that the applicant's right in
terms of section 33 of the Constitution of the Republic of South Africa is protected.
[14] The applicant further asserted that the Municipality failed to conduct the entire
biddi ng process in line with the constitutional provisions set out in section 217 of the
Constitution, specifically concerning the evaluation of the applicant's tender
documents. In the applicant's view, the Municipality manipulated the tendering
process to bri ng about an unlawful favour of another bidder. Based on these
concerns, the applicant respectfully pleaded with this Court to interdict the
Municipality from making the final award to the fourth respondent pending the review
application in Part B of this a pplication. T o this end, t he applicant prayed that the
court grant the interdict ory relief sought in the Notice of Motion.
The Municipality ’s Case
[15] The Municipality opposed the applicant's application and raised several
preliminary issues. The Municipality asserted that the applicant has failed to make
out its case on the papers for condonation of its noncompliance with the Uniform
Rules of Court on s ervice and Rule 41A(2), thereby rendering the proceedings a
nullity and ineffective. The Municipality stated that the applicant's tender, which is the
subject of this application, is tainted by fraud, and that had this been known at the
time of the bid adj udication, the tender would have been deemed non -responsive for
this reason.
[16] In addition, the Municipality averred that the two tenderers, namely CHS
Development CC and Ruwacon (Pty) Ltd, who were recommended as the first and
the second alternative successful tenderers, ought to have been joined in this
application, particularly co ncerning the relief sought in Part B. The Municipality also
questioned the fact that the application was served on the Municipality via email
without obtaining prior leave from this Court. The Municipality asserts that the
applicant fails to explain why it could not have served the application on the
Municipality in accordance with Rule 4(1)(a) of the Rules of Court. Thus, due to the
lack of proper service, the Municipality contended that the applicant's application
constitutes a nullity or ineffective and remains as such, irrespective of the
Municipality's notice to oppose and the subsequent filing of an answering affidavit.
[17] According to the Municipality, the deponent to the applicant's founding
affidavit, Mr Mabasha, refers to himself as the applican t in this matter,
notwithstanding his further averments that he is duly authorised to depose to the
affidavit on behalf of the applicant and the resolution attached to the founding
affidavit. In the Municipality's view, it is evident from the content of th e founding
affidavit and the explicit language employed by Mr Mabasha that his assertion of
being the applicant carries weight as he consistently makes statements throughout
his affidavit that substantiate this claim.
[18] The Municipality state d that Mr Mabasha is not even a member of the
applicant. The sole member, as indicated in the tender documents submitted under
the name of the applicant, is Fungelelani Mulaudzi. The respondent stated further
that it appears the tender was submitted under the name of the applicant under
circumstances that raise strong suspicion that the applicant company has been used
as a front. Based on the information provided, the Municipality contends that the
applicant, along with its sole member as reflected in the CIPC recor ds, was not the
actual tenderer, contrary to what is stated in the resolution attached to the applicant's
founding affidavit.
[19] The Municipality referred the court to Clause C.2.14 of the Standard
Conditions of Tender, which form ed part of the returnable documents that had to be
submitted by all tenderers. It provided as follows:
The tenderer accepts that tender offers which do not provide all the data of
information requested , completely and in the form required, may be regarded
by the employers as non -responsive.
[20] The Municipality asserted that the information supplied through the CV of Mr
Fhumulani , the applicant’s Construction Manager, did not comply with the dictate s of
clause C.2.14, and the tender was found wanting for the reasons stated in the report
attached to the Municipality's letter of 06 November 2024. The Municipality further
noted that from a perusal of the CV of the applicant's Construction Manager, it was
patently clear that although the information contained therein may have been
accurate, the applicant did not comply with the tender requirements as it was
incomplete, and his construction experience could not be verified by the Municipality.
[21] The Mu nicipality contended that the applicant's Construction Manager's
alleged experience for the period 2004 to 2011 was rightfully not considered as it
could not be verified for reasons stated in the adjudication report following the
applicant's objection to a warding the tender to the fourth respondent.
[22] In the said adjudication report, the Municipality stated that the applicant had to
comply with paragraph 3 of the tender eligibility criteria and provide evidence as
follows: (Construction Manager (full time on site), suitably skilled and have a CV with
verifiable experience as fo reman on building projects with a minimum of ten years
experience). In the report, the Municipality noted further that the applicant submitted
a CV of its Construction Manager as part of its tender document. The projects
completed by the Construction Manag er were scrutinised by the Bid Evaluation
Committee (BEC), and although the Construction Manager indicated 10 years of
experience in construction, his experience was divided into civil engineering,
maintenance and building projects.
[23] The BEC only identified eight years (8) of building construction experience
from the CV of the applicant's Construction Manager, which fell short of the
threshold. The Municipality contended that for a project to be relevant for
consideration as envisaged in paragraph 3 of the tender eligibility criteria, it had to be
building works. The BEC identified building work experience completed by the
applicant ’s Construction Manager in the period 2009, 2010, 2011, 2012, 2015, 2016,
2019 and 2020. To this end, it c oncluded that the applicant failed to submit all the
required information and could, therefore, not be considered .
[24] The Municipality stated that it dealt with the applicant's tender in strict
compliance with the law. The Municipality further opined that in failing to comply with
the terms of the tender invitation, the applicant has undoubtedly brought about its
own misf ortune, and the resulting issues are a direct consequence of its own actions.
The Municipality refuted the allegation that it had deliberately manipulated the
tendering process to unlawfully favour another bidder as untrue, devoid of any
factual basis, and defamatory.
[25] Furthermore, the Municipality asserted that the completion of the housing
project for the Municipality's constituency is of critical urgency and cannot be
hindered by an opportunistic attempt to revisit the entire process, which was
conducted in full compliance with constitutional requirements and the framework of
the Public Finance Management Act 1 of 1999.
[26] According to the Municipality, the tender process fully complied with the Five
Pillars of Procurement and reflects the Munic ipality's commitment to exceeding the
minimum standards required, ensuring the highest levels of transparency, fairness,
and accountability in every aspect. The Municipality denied that the applicant
suffered any prejudice from the Municipality's decision.
[27] The Municipality also impugned the urgency with which this application was
brought. It noted that the application was issued 36 days after the applicant was
informed of the decision and provided with reasons for it. This considerable delay
demonstrates a lack of urgency or dili gence on the part of the applicant, undermining
any suggestion that immediate relief is warranted. Furthermore, the Municipality
contended that any urgency pertaining to the matter is, at best, for the applicant, self -
created.
[28] In addition, the Munic ipality contended that the applicant was made aware on
18 October 2024 of the urgency pertaining to the tender through a letter from the
Municipality informing it that the tender had been awarded to the fourth respondent.
The applicant was further appraise d on 6 November 2024 that its objection to the
award of the tender to the fourth respondent had been rejected and of the reasons
thereof.
[29] The Municipality stated that on 13 November 2024, the applicant was
informed that the Municipality upheld its d ecision to reject the applicant's objection.
Notwithstanding, the founding affidavit of the applicant was only signed on 11
December 2024, 28 days after 13 November 2024. Furthermore, the application was
served through email to the Municipality on 12 December 2024. In its notice of
motion, the applicant gave the Municipality 6 days, including the long weekend, to
oppose the matter and to serve and file its answering affidavit.
[30] The Municipality further asserted that the completion of the project is of critical
urgency . The fifty-five (55) days that have passed since the applicant was informed
that his bid was unsuccessful (on 18 October 2024) until the issue of the founding
papers (on 12 December 2024 ), in the context of this matter, represent s an
unreasonable and unjustifiable delay . In the Municipality ’s view, g iven the pressing
nature of the project , any further postponement would be detrimental to the public
interest and contr ary to the principle of effectiveness in procurement mat ters.
[31] The Municipality explained that the reason the applicant gave for the delay
was that it was waiting for the tender documents from the Municipality so that it could
attach them to its application . According to the Municipality , this explanation is feeble
and implausible . In light of the fact that the applicant proceed ed to in stitute this
application without the requisite tender documents, the Municipality contends that
this reason is merely an opportunistic excuse.
[32] The Municipality asserted that the applicant's delay in issuing the application
demonstrates an evi dent lack of seriousness and an intent to exploit the process
rather than pursue it with diligence and urgency. The Municipality emphasised that
the necessity of submitting the application for interim relief at an earlier date than its
eventual filing is h ighlighted by several important considerations, namely: an amount
of five (5) million allocated to the Municipality by the Western Cape Government:
Department of Infrastructure for this project, must be utilised by April 2025. Failure to
do so , will result in the reversion of these funds to the Department, causing
significant financial loss and substantial delays in the completion of the housing
project.
[33] Furthermore, the municipality is under severe pressure to complete the
project and execute its constitutional mandate to provide adequate housing for its
constituents, particularly considering that there are dire shortages of housing in its
jurisdiction. The granting of an interim interdict at this stage will result in profound
and far -reaching prej udice, not only by delaying the ability to meet its constitutional
obligation but also by prolonging the hardship faced by its constituents in desperate
need of housing. Such a delay would undermine the public interest and exacerbate
the housing crisis in the Municipality's jurisdiction. The Municipality applied that the
applicant's application be dismissed with costs.
Preliminary Issues
[34] There are two main preliminary issues in this matter: one raised by the
applicant and the other raised by the Municipality . Concerning the first preliminary
issue, the applicant contended that there is no proper answering affidavit before this
Court as the deponent of the answering affidavit, Ms Delia Power, the Acting Director
of Human Settlements, Planning and Development and Management at the George
Municipality, lacks personal knowledge of the information deposed to in the
answering affidavit.
[35] The applicant asserted that a deponent is a witness who is testifying about
information they have personal knowledge about. In the absence of such personal
knowledge, the information relayed becomes hearsay. When one does not have
direct knowledge of the information, the relevant person provides a confirmatory
affidavit. In this case, the applican t contended that there is no confirmatory affidavit
from the relevant official; therefore, there is no proper answering affidavit before this
Court.
[36] The second preliminary point is that of urgency raised by the Municipality. The
Municipality argued that the urgency with which this matter was brought was self -
created, and the matter must be struck off the roll on that ground alone. For
convenience, I will deal with the applicant's preliminary point first. Thereafter, I will
consider the question of ur gency raised by the Municipality .
Is the respondent's answering affidavit defective or proper?
[37] In the answering affidavit, the Acting Director of Human Settlement, Planning
and Development and Property Management at the George Municipality asserted
that she is duly authorised to depose to the affidavit and to oppose the application on
behalf of the Municipality. In addition, the deponent state d that the facts contained
therein do not fall within her personal knowledge. However, she has ascertained the
correctness thereof from files pertaining to this matter under her control and
supervision as Acting Director of Human Settlements, Planning and Development on
Property Management. The deponent also averred that she has further verified these
facts from information obtained from the officials of the Municipality who are directly
involved in this matter. The deponent also stated that she believes the information
communicated to her to be true and correct.
[38] The deponent has been duly authori sed to depose to the affidavit. She has
ascertained the correctness of the facts relating to her deposition from files
pertaining to this matter under her control and supervision as Acting Director of
Human Settlements, Planning and Development on Property Management .
Evidently, all the documents of the Municipality are under her contr ol and
supervision . In my view, the deponent acquired direct knowledge of the facts of this
case from the perusal of documents under her control.
[39] As the Acting Director of Human Settlement, she held complete possession
and oversight of all records and documents belonging to the Municipality that are
relevant to this application. These materials form the basis of the applicant's interdict
application against the respondents under the above case number. In my view, in
discharging her responsibility , the deponent has thoroughly examined and
familiarised herself with these documents and records, ensuring she has a
comprehensive understanding of their con tents. She has familiarised herself with the
documents and records relating to this application which are under her control and
supervision .
[40] While I accept that the information obtained from officials of the Municipality
who are directly involved in this matter on the face of it amounts to hearsay evidence
without their confirmatory affidavit, however, I am of the view that such information
was verified and confirmed by the deponent from the documents in her control and
found to be true and correct. The nature of the deponent's occupation suggests very
strongly that she would, in the ordinary course of her duties, acquire personal
knowledge of t he Municipality's tender documents and all tenders submitted during
the tender process.
[41] Furthermore, formalism and a n inflexible approach should be avoided in a
case like this. The deponent to the respondent's affidavit represents the Municipality.
The Municipality represents its constituency. A rigid approach in this regard would be
detrimental to public interests. The Municipality is currently experiencing
considerable pressure to complete the project to fulfil its constitutional mandate of
providi ng housing for its constituents. This urgency is underscored by the critical
housing shortage within its jurisdiction, as highlighted by the Acting Manager. In the
circumstances, I am of the opinion that the applicant's preliminary point must fail. I
will now turn my attention to the issue of urgency.
Urgency
[42] The legal principles applicable to the question of urgency are well -established
in our law. The test for urgency emanates from the provisions of Rule 6(12) of the
Uniform Rules . Rule 6(12) confers courts with a wide discretion to decide whether an
applicat ion justifies enrolment on the urgent court roll based on the facts and
circumstances of each case.1 An application is urgent when an applicant cannot
obtain substantial redress at a hearing in due course.2 The degree of departure from
the modes of service and time frame in the Uniform Rules must be commensurate
with the urgency in each case.3
[43] It is important to point out that an applicant must explicitly set forth the
circumstances that he believes render the matter urgent and the reasons why he
claims that he cannot be afforded substantial redress at the hearing in due course.
Simply put, an application is urgent when an applicant cannot obtain substantial
redress in due course.4 An applicant must strictly comply with the requirements of
rule 6(12)(b) , including explicitly demonstrating the urgency of the matter and
explaining why substantial redress cannot be obtained later.
[44] The Municipality challenged the urgency and the truncated timeframe with
which this application was brought. The Municipality contended that the delay is so
unreasonable and demonstrates a lack of diligence on the part of the applicant,
undermining any suggestion that immediate relief is warranted. According to t he
Municipality, the explanation advanced by the applicant for its delay in bringing this
application is feeble and insubstantial.
[45] The reason for the delay advanced by the applicant is that the applicant
requested its tender documents from the Munic ipality as it wished to use these
documents in the urgent application. According to the applicant, no response was
forthcoming. In addition, the applicant submitted that on 13 November 2024, it
1 Mogalakwena Local Municipality v Provincial Executive Council, Limpopo [2014] 4 AII 67 (GP) at
para 63; Caledon Street Restaurants CC v D’ Aviera 1998 JDR 0116 (SE) at 8.
2 Dlamini v City Manager of the City of Ekurhuleni Metropolitan Municipality [2023] ZAGPJHC 147 at
para 27.
3 Republikeinse Publikasie (edms) Bpk v Afrikaanse Pers Publikasie (edms) Bpk 1972 (1) SA 773 (A)
at 782A -G.
4 Dlamini v City Manager of the City of Ekurhuleni Metropolitan Municipality [2023] ZAGPJHC 147 at
para 27.
received a response holding that the Municipality stands by it s decision to reject the
applicant's tender bid. Subsequently, the applicant sought legal assistance. The
applicant obtained legal advice to pursue the matter. On 25 November 2024,
Matamela Enterprise CC (the applicant) gave the deponent of the founding af fidavit
the go -ahead to institute these legal proceedings.
[46] Mr Mpya , the applicant’s Counsel argued in his written submission that
Review applications by their very nature are urgent as they involve the fundamental
principle of the rule of law and constitutional principle of just administrative action
enshrined i n section 33 of the Constitution. Counsel submitted that this is a classic
urgent case that warrants the immediate attention of this Court more so because the
Municipality has shown an appet ite to litigate as the applicant was duly invited to sue
them. Respectfully, I do not agree with this proposition. Whatever the nature of the
claim , there must be some reason why the applicant will not be able to protect or
advance their legal rights later , unless they are given specific relief now.
[47] In Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tk olose
Trading CC ,5 the court state d, and correctly so, in my view , as follows:
“[6] There is, accordingly, no class of proceeding that enjoys inherent
preference. Counsel appearing in urgent court would, in my view, do well to
put the concept of “inherent urgency ” out of their minds. There are, of course,
some types of cases that are more likely to be urgent than others. The nature
of the prejudice an applicant will suffer if they are not afforded an urgent
hearing is often linked to the kind of right being pursued. Spoliation is a
classic example of this type of claim. Provided that the p erson spoliated acts
promptly, the matter will nearly always be urgent . The urgency does not,
though , arise from the nature of the case itself , but from the need to put right a
recent and unlawful disposition. The applicant comes to court because they
wish to restore the ordinary state of affairs while a dispute about the right to
possess a thing works itself out. Cases involving possible deprivations of life
and liberty, threats to health, the loss of one ’s home or some other basic
5 (2023/067290) [2023] ZAGPJHC 846 (1 August 2023).
essential of daily life, such as water or electricity , destruction of property , or
even crippling commercial laws are also likely to be urgen t.
[8] The fundamental point is that a matter is urgent because of the imminence
and depth of harm that the applicant will suffer if relief is not given , not
because of the category of right the applicant assets .”
[48] The reasons provided by the applicant for the delay in filing this application
are deficient and unconvincing. As Mr van der Merwe, the respondent's Counsel,
aptly note d, the applicant took 40 days to submit its application after being informed
of the reasons behind the Municipality's decision. Although the applicant stated that it
was waiting for the tender documents from the Municipality, the applicant instituted
this application without having the relevant tender documents. The claim that the
applicant could not apply in a timely manner due to awaiting the tender documents is
contradicted by the fact that the application was submitted without these documents.
[49] From the evidence filed , the applicant was informed on 18 October 2024 that
its tender was unsuccessful and that the fourth respondent was nominated as the
successful bidder. Pursuant thereto, t he applicant submitted its objection to the
award on the 1 Nov ember 2024, the last day of the 14-day objection period. The
Municipality expeditiously responded to the applicant’s objection on 6 November
2024 with its reasons for the finding that the applicant’s tender was found to be non -
responsive. Notwithstanding t he Municipality ’s response with reasons , on 11
November 2024, the applicant submitted a further letter requesting reasons
pertaining to its Construction Manager. On 13 November 2024, the Municipality
informed the applicant that a thorough explanation was p rovided in its letter dated 6
November 2024 and that the Municipality stood by its previous decision and deem
the decision final.
[50] The applicant thereafter waited a month and subsequently brought this
application on an urgent basis with truncated timelines. As explained above, the
main reason for the delay was that the applicant was waiting for the tender
documents from the municipali ty. Importantly, in its replying affidavit, it became clear
that the request to the Municipality for the tender documents was only made via
email on 09 December 2024. The applicant waited from 13 November 2024 and
proceeded to issue these proceedings urgen tly on 12 December 2024.
[51] I repeat, t hese proceedings were in stituted even before the tender documents
were provided to the applicant. As the Municipality rightly noted, the applicant chose
to move forward with the application without having the tend er documents.
Therefore, the claim that the delay was due to waiting for the tender documents
appears to be opportunistic. In my opinion, the applicant unreasonably delayed in
bringing this application. The applicant has not provided a full explanation, no r a
reasonable one, for the delay in launching this application. Our courts have
repeatedly held that an unexplained delay in urgent proceedings is an indicator of
self-created urgency.6
[52] This considerable delay demonstrates a lack of urgency or diligence on the
part of the applicant and undermines any suggestion that immediate relief is
warranted. More so, the reasons provided for the delay are so flimsy. In fact, the
delay, in my view, is self -created. The applicant had to bring its application at the first
available opportunity, and its failure to do so diminished urgency.7 Our courts have
more than once made it clear that self -created urgency ought not to be entertained.8
[53] In summary, the applicant's explanation for the delay is wholly inadequate.
The applicant has failed to provide a full explanation for the significant delay in
instituting this application on an urgent basis. The urgency asserted by the applicant
is entirely a self -created urgency.9 There is no good reason provided for the
applicant ’s failure to bring this application earlier. Accordingly, this application should
ordinarily be struck from the roll.
The Applicant’s Application on the Merits
6 See Big Blue Marketing CC v King Sabata Dalindyebo Local Municipality 2017 JDR 0302 (ECM) at
para 10; Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd 2013 JDR 1989 (ECM) at para 9.
7 Mhonko’ s Security Services CC v City of Cape Town (21132/2018) [2018] ZAWCHC 168 (30
November 2018) at para 13.
8 South African Social Security Agency v Minister of Social Development 2018 (10) BCLR 1291 (CC)
at para 19; Metbank Limited v Absa Bank Limited (5930 3/2021) [2022] ZAGPJHC 6 (4 January 2022)
at para 10.
9 Big Blue Marketing CC v King Sabata Dalindyebo Local Municipality 2017 JDR 0302 (ECM) at para
10; Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd 2013 JDR 1989 (ECM) at para 9.
[54] Normally, t he finding regarding urgency would typically lead to the applicant's
interdictory application being struck off the roll. However, for the sake of
completeness and certainty on the issues raised, I will consider the applicant’ s
application on the merits. The applicant seeks an interdict agai nst the Municipality ,
pending the review application in Part B. The traditional formulation of the
requirements for an interim interdict is that the applicant must establish ( a) a prima
facie right ( b) a reasonable apprehension of irreparable harm if the i nterdict is not
granted, ( c) the balance of convenience must favour the grant of the interdict , and ( d)
the applicant must have no other remedy.10
Prima facie right
[55] In determining whether a prima facie right has been established, the right
need not be shown by a balance of probabilities. If it is prima facie established,
though open to some doubt, that is sufficient.11 The Court has a general and
overriding discretion whether to grant or refuse an application for interim relief. In the
present matter, in the founding affidavit, the applicant asserted a prima right to
protect and enforce its right to a fair administrative action and the right to review the
administrative decision of the Municipality .
[56] According to the applicant, the administrative action taken by the Municipality
was unfair and unreasonable and must thus be reviewed to protect the appl icant's
right in terms of section 33 of the Constitution read with PAJA. The applicant also
argues that it has demonstrated strong prospects of success in its review application
in part B and possesses significantly more than a prima facie right to the rel ief
sought. Additionally, the applicant emphasises that its construction manager has
over 10 years of relevant experience, which is a requirement for the tender. The
applicant believes it was unjustly denied the tender because the Municipality failed to
consider the Construction Manager's experience gained between 2004 and 2011.
10 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383A -C; Pietermaritzburg
City Council v Local Road Transportation Board 1959 (2) SA 758 (N) at 772C -E).
11 Webster v Mitchell 1948 (1) SA 1186 (W) at 118 9; Knox -D’Arcy Ltd v Jamieson 1995 (2) SA 579 (W)
at 592H – 593B.
[57] I have considered the applicant's submission and meticulously examined the
tender documents the applicant presented to the Municipality. In addition, I have also
considered all the tender requirements established by the Municipality for the tender
to be de emed responsive. In light of this analysis, I agree with the Municipality's
contention that the applicant has, in essence, orchestrated its own misfortune. The
applicant failed to adequately disclose the full years of experience of its Construction
Manager .
[58] It may be so that the applicant's Construction Manager has 17 years of
experience, as stated in the confirmatory affidavit filed with this application, which
exceeds the Municipality's threshold of 10 years. However, there are concerns
regarding h is construction work experience, which is set out in his CV for 2004 and
2011. The evidence from the applicant's tender documents indicates that the
applicant's Construction Manager only had 8 years of experience during that
timeframe, falling short of the required threshold. The applicant did not adequately
disclose the necessary information for this period as specified in the terms of the
tender. As a result, this lack of proper and efficient disclosure has hindered the ability
of the evaluation committee to effectively verify the Construction Manager's
experience. This deficiency cannot be attributed to the Municipality.
[59] For clarity, the applicant states that various building works were conducted
between 2004 and 2011. The applicant has listed the d ifferent projects that its
Construction Manager managed during this time. Specifically, the applicant claims
that between 2004 and 2011, the Construction Manager worked on projects
including , amongst others, Bombela CJV, Pilanesberg Platinum Mine, building works
at the Johannesburg High Court, and construction at Soshanguve South. However,
the timeline for this work is unclear, as the CV does not specify when each piece
was performed. It remains ambiguous whether the various work was completed in
the same year or if they were done in 2008, 2009, or 2010. This information is not
easily verifiable from the CV.
[60] In my opinion, for the applicant’s tender to be considered responsive and to
meet the eligibility criteria, it should have clearly outlined when the relevant work was
performed between 2004 and 2011. This clarity would have facilitated the BEC's
assessment of the experience of the applicant’s Construction Manager. The
generalisation of the Construction Manager's experience in the tender documents
(CV) made it challenging for the Municipality's B EC to verify his experience.
Therefore, the Municipality cannot be faulted or held responsible for the applicant's
ineptness. To this end, I agree with the contention made in the Municipality ’s
answering affidavit that the applicant’s tender documents failed to explicitly disclose
the necessary information for the period 2004 to 2011 as required by the terms of the
tender which prevented the verification of the Construction Manager’s experience.
[61] The applicant has submitted a confirmatory affidavit from its Construction
Manager, stating that he has 17 years of experience. In the applicant's application,
particularly in the replying affidavit, the applicant seeks an order for the interdict to be
granted so that the experience of its Construction Manager can be properly re -
evaluated. The applicant believes that re -evaluating the Cons truction Manager's CV
will not take long and that resolving this matter speedily will allow the Municipality to
plan effectively. I do not agree with this submission.
[62] This ten der affect s 200 recipients of homes along with their families. The
Municipality has indicated that the five million allocated to it by the Western Cape
Government's Department of Infrastructure for this project must be utilised by 30
April 2025. Failure to do so will result in these funds being returned to the
Department, leading to significant financial loss and substantial delays in the
completion of the housing project. In its answering affidavit, the Municipality stated
that it is under considerable pre ssure to complete the project to fulfill its constitutional
mandate to provide adequate housing for its constituents, especially given the
severe housing shortage within its jurisdiction.
[63] In my opinion, the Municipality cannot be held responsible for the applicant's
incompetence or sloppiness. Given the circumstances, I believe that granting an
interim interdict at this stage would lead to significant and far -reaching
consequences. It would not only hinder the Municipality's ability to fulfill its
constitutional obligations but also prolong the hardships faced by its residents who
are desperately in need of housing. Such a delay would undermine the public
interest and worsen the housing crisis within the Municipality's jurisdiction. In this
context, th e Constitutional Court has repeatedly emphasised tha t Courts must be
astute in not usurping the functions of administrative bodies. The Court stated:
“In treating the decisions of administrative agencies with appropriate respect,
a Court is recognising the proper role of the Executive within the Constitution.
In doing so a Court should be careful not to attribute to itself superior wisdom
in relation to matters entrusted to other branches of government. A Court
should thus give due weight to findings of fact and policy decisions made by
those with special expertise and experience in the field. ”12
Irreparable Harm
[64] The applicant is obliged to demonstrate that it has a well -grounded
apprehension of irreparable harm if the interim relief is not granted. In this instance,
the applicant contends that the actions of the Municipality have resulted in significant
suffering and detriment to the applicant, as the experience of its Construction
Manager was not adequately assessed. Moreover, the applicant argues that the
failure to consider the Construction Manager's extensive experience, which exceeds
ten years, has disproporti onately affected the applicant's prospects of success. The
applicant maintains that, should the court fail to review and set aside the tender, it
will incur further prejudice.
[65] I must stress that ever since the decision of the Constitutional Court in
National Treasury and Others v Opposition to Urban Tolling Alliance and Others ,13
(‘OUTA ’), an applicant cannot merely rely on a right of review because review rights
do not require any preservation pend ente lite . To succeed with interim interdict ory
relief, some rights other than a right to review must be threatened with irreparable
harm .14 Simply put; t o obtain a temporary interdict, it is no longer enough for an
applicant to contend that it has a good review case. In terms of OUTA, the prima
facie right that an applicant must establish is not merely the right to approach a court
12 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) at para 48.
13 2012 (6) SA 223 (CC).
14 Green Point Residents ’ and Ratepayers Association and Others v Gartner and Others (4859/2024)
[2024] ZAWCHC 252 (10 September 2024).
to review an administrative decision. It is a right to which irreparable harm will ensue
if not protected by an interdict. For completeness, in paragraph 50, the court state d:
“An interdict is meant to prevent future conduct and not decisions already
made. Quite apart from the right to review and to set aside impugned
decisions, the applicants should have demonstrated a prima facie right that is
threatened by an impending or immi nent irreparable harm . The right to review
the impugned decisions did not require any preservation pendente lite. ” (my
emphasis).
[66] In Khoin and Others v Jenkins and Others and a related matter ,15 the full court
of this Division applied OUTA to an application for a construction interdict. It held that
‘protecting the right to review the unlawful decisions cannot form the basis for interim
relief’.16 The court noted that t o interdict building work pending a re view, a prima
facie right is not established merely if grounds of review show prospects of success.
The full court found that an applicant for a construction interdict must now satisfy the
jurisdictional requirement of demonstrating that the development wi ll irreparably
harm a substantive right other than the right to review .
[67] Applying these principles t o the present case , I am of the view that the
applicant is not entitled to an interim interdict as it has failed to show that its right s
are subject to imminent or irreparable harm even if the review ultimately succeeds as
contemplated in OUTA. As stated above, an applicant cannot rely on the right of
review because review rights do not require any preservation pend ente lite . In
Greenpoint Residence and Ratepayers Association and Others v Gar tner and Others
(supra – note 14 ) the court stated that there could be no consideration of irreparable
harm without a prima facie right to be protected from future irreparable harm . In my
view, the applicant has not shown a prima facie right to be protected from future
harm.
The balance of convenience
15 Khoin and others v Jenkins and others and a related matter [2023] 1 All SA 110 (WCC).
16 Khoin and others v Jenkins and others and a related matter (supra) at para 43.
[68] In determining the balance of convenience, the court must assess the harm
that the Municipality may suffer if the interim order is granted with the prejudice the
applicant will face if it is refused. In addition, in a case such as this, the balance of
conv enience inquiry must thoroughly probe whether and to what extent the
restraining order will probably intrude into the exclusive terrain of another branch of
government. The enquiry must properly regard what may be called separation of
powers harm .17
[69] It is common cause that the Municipality has the constitutional and statutory
mandate and authority to provide housing for its residence within its jurisdiction. In
my view, the granting of an interdict against the Municipality, in this case, has the
potential to frustrate the development of houses to the prejudice of the Municipality's
Constituency. An interdict sought by the applicant will affect the discharge of the
Municipality's constitutional developmental duty as envisaged in sections 152(1)(c)
and 153 of the Constitution. I am of the view that the balance of convenience does
not favour the applicant for the granting of an interim interdict. Furthermore, there is
no imminent irreparable harm that the applicant would suffer if the interim interdict i s
not granted.
Alternative remedy
[70] The applicant, in my view, ha s an alternative remedy. The review application
is the applicant ’s alternative remedy. Should the applicant b e able to establish
reviewable irregularities in Part B of this application , the review court will be able to
grant suitable remedies to protect th e applicant’s rights.
Conclusion
[71] Given all these considerations, I am of the view that the applicant has not
demonstrated an entitlement to a n interim interdict. The refore, the applicant's
application for an interim interdict must fail.
17 See National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA
223 (CC) para 47).
Costs
[72] As far as the issue of costs is concerned, it is trite that a court considering an
order of costs exercises a discretion and that the court’s discretion must be
exercised judicially.18 In this case, there are no reasons advance for a departure
from the nor mal rule that costs follow the event. The applicant must pay the costs of
this application.
Order
[73] In the result, the following order is granted:
73.1 The applicant’s application is hereby dismissed.
73.2 The applicant is ordered to pay the costs of this application, including
the costs of Counsel on scale B.
____________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the App licant : Adv Mpya
Instructed by: Tshivhase Attorneys Inc
For the first Respondent (the Municipality ): Adv van der Merwe
Instructed by: Le Roux Lamprecht Inc
18 Ferreira v Levin NO and Others; Vreyenhoek and Others v Powell NO and Others 1996 (2) SA 621
(CC); Motaung v Makubela and Another, NNO; Motaung v Mothiba NO 1975 (1) SA 618 (O) at 631A.