2
N S KRÜGER AJ:
Summary
Interim interdict on motion sought pending review application-Organ of State-
statutory duties- National Treasury and others v Opposition to Urban Tolling Alliance
and others 2012 (6) SA 223 (CC)- only in exceptional cases and when a strong case
for that relief has been made out- malice required- fraud alleged- inferences required
to be drawn- causation- imminent irreparable harm- balanc e of c onvenience
Introduction
[1] For the sake of convenience I refer herein to the first applicant as D&D, the first
respondent as CEM, the second respondent as Malaka and the third
respondent as PPD.
[2] On 2 September 2022 CEM called online for bids on tender for the supply,
delivery and off-loading of various sizes of water meters and related material on
an „as -and- when‟ required basis. D&D is one of several parties which bid for
appointment as the service provider to supply, deliver and/or offload water
meters and related material in competition with Malaka.
[3] Following upon the tendering process, CEM entered into a Service Level
Agreement with Malaka on 19 April 2023 for the supply, delivery and off-loading
of various sizes water meters on an „as and when required ‟ basis. It continues
until 30 June 2025 (“the contract ”).
[4] D&D was displaced as the incumbent contracting party, from 2017 until 2022,
to whom a contract had previously been awarded for the supply of water meters
and water meter boxes
[5] The applicants issued an application on or about 20 July 2023 consisting of
Part A interdicting Ekurhuleni Metropolitan from ordering, installing and/or
purchasing any above ground water meter boxes from Malaka and the third
respondent pending the outcome Part B. In the latter part, the applicants s eek
an order setting aside CEM ‟s decision and award of a contract for the supply,
installation and/or purchasing of above ground water meter boxes to Malaka
3
and PPD. An amended notice of motion was filed on 4 October 2023. It differs
from the initial notice of motion in that Part B now provides for the review and
setting aside of the contract.
[6] The second and third applicants were cited only because they were considered
to have a real and substantial interest in the matter. Neither seeks relief against
the r espondents. There was no appearance for PPD from whom, according to
the D&D, Malaka sourced meter boxes towards the execution of its obligations
to CEM.
The pa rties’ submissions and arguments in summary
[7] D&D alleges CEM acted unlawfully in awarding the tender and concluding the
contract with Malaka. In doing so, CEM had infringed upon D&D‟s constitutional
rights as well as its rights provided for in the Preferential Procurement Policy
Framework Act1 (PPPFA). The water meters and boxes manufactured by PDD
did not meet the technical specifications published in the bid documents whilst
those manufactured by D&D did. According to D&D, CEM conceded that
Malaka‟s water meters and boxes did not meet the re quired technical
specifications. They are also inferior to the water meter boxes previously
supplied by D&D. CEM ought to have rejected Malaka‟s bid on that basis, and
no contract ought to have been concluded with it. CEM had given Malaka
preferential treatment and continues doing so in that it allowed for the
improvement of the water meter boxes offered to comply with the specifications
ordered.
[8] At the hearing, counsel for D&D introduced a further ground which was not
relied upon before. It was alleged an interim or der should be granted due a
fraud. In a nutshell it was submitted that an analysis of several documents is
indicative of a fraud having been perpetrated as a consequence of which the
tender was awarded to Malaka and the contract entered into.
[9] In essence CEM‟s case is that the tender process was done in a manner that
was just, equitable, transparent, competitive as well as cost effective as

1 5 of 2000
4
required by law. It has a statutory duty to manage water resources to ensure
sustainable and effective water use. This requires, amongst others, the ability
to meter and tariff water use. The effect of interim order sought will restrain
CEM from exercising its statutory duties. It was argued on behalf of CEM that
no evidence was presented that D&D was unfairly treated or that its rights were
impugned upon. Nor is there evidence that Malaka‟s product fails to meet the
specifications of the revised bid documents. In any event, the contract is weeks
away from its termination date. It was submitted that D&D failed to establish a
prima facie right as it did not show good prospects of success in the review
prayed for in Part B of the application, or that it would suffer imminent
irreparable harm should the interim interdict not be granted.
[10] Counsel for CEM submitted that even if it is found there exists good prospects
of success in the review, the award of the tender and conclusion of the contract
might not be awarded to D&D. The fact of the termination of the contract in the
very near future is pertinent in this regard. There is no evidence that in the time
left there is any requirement for further meters to be installed. Some two years
had lapsed since the conclusion of the contract during which time Malaka
performed its obligations. A number of constitutional rights, values and
obligatio ns which is established will be negated should an interim order be
granted at this late stage. D&D had failed to establish that for the past several
years it had suffered any harm, or that it will continue suffering harm in the little
time of the contract left that could not be compensated by a monetary award
and/or damages should the review be successful. In having allowed so much
time to pass since the conclusion of the contract, any prejudice D&D may suffer
is outweighed by the prejudice CEM and the community it is constitutionally
obliged to serve will suffer should the interim interdict be allowed.
[11] In a nutshell, Malaka‟s case is that the c ontract was awarded lawfully in
accordance with the provisions of section 217 of the Constitution2 as well as the
relevant provisions of the PPPFA.3 In awarding the contract, CEM‟s
assessment of the bids was not only informed by the specification of the water
meter boxes, but also by the lowest price which was offered in Malaka‟s bi d.

2 108 of 1996
3 Section 2(1)(a), (c), (d), €., (f) and (g)
5
Any opportunity provided to Malaka to improve its water meter boxes was not
unlawful as it would be in compliance with the provisions of the PPPFA.
Consideration
[12] The requisites for granting of an interim interdict as set out in Setlegelo v
Setlegelo4 more than a century ago in Webster v Mitchell5 is well settled. It has
been confirmed, amongst many others, by the Constitutional Court in National
Treasury and others v Opposition to Urban Tolling Alliance and others 6 as well
as the Supreme Court of Appeal.7 An applicant is required to establish: (a) a
prima facie right, albeit open to some doubt; (b) a well-grounded reasonable
apprehension of irreparable and imminent harm occurring if an interim interdict
is not granted and final relief is ultimately granted; (c) the balance of
convenience should favour the applicant; and (d) the absence of any other
satisfactory remedy. For an interim interdict to be granted a ll these requisites
must be shown to be present on a balance of probabilities. They are not judged
in isolation and are interactive as part of the wide discretionary nature of an
interim interdict.8
[13] In National Treasury it was held that the test must be applied cognisant of the
normative scheme and democratic principles which underlies constitutional
principles. When considering whether to grant an interim interdict it must do so
in a way that promotes the objects, spirit and purpose of the Constitution . In
reference to the full court decision in Gool v Minister of Justice and
Another9 the principle that courts grant temporary restraining orders against the
exercise of statutory power only in exceptional cases and when a strong case
for that relief has been made out.10 For an applicant to succeed in a matter
where the order sought will restrain the exercise of statutory powers it will not

4 1914 AD 221 at 227
5 1948 (1) SA 1186 (W)
6 2012 (6) SA 223 (CC) at [41]
7 KSL v AL 2024 (6) SA 410 (SCA) at [16]; National Commissioner of Police and another v Gun
Owners of South Africa (Gun Free South Africa as amicus curiae) [2020] 4 All SA 1 (SCA) at
[36]
8 Cliff v Electronic Media Network (Pty) Ltd and another [2016] 2 All SA 102 (GJ); Beecham
Group Ltd v B-M Group (Pty) Ltd 1977 (1) SA 50 (T) at 54E
9 1955 (2) SA 682 (C) at 689B-C
10 National Treasury at [44]
6
readily be granted in the absence of mala fides having been shown save in the
clearest of cases.11
[14] Everyone has the right to sufficient water in terms of Chapter 2 of the
Constitution12 and the state is enjoined to take reasonable measures to achieve
the realisation of this right .13 Delivery of water and sanitation services is the
responsibility of local government.14 There is no doubt CEM has a statutory
duty to meter and tariff use of water to enable Integrated Water Resource
Management in ensuring sustainable and effective water use. In consequence,
the plaintiff bears the onus to prove that the CEM had acted with malice in
awarding the contract to Malaka.
[15] It is not sur prising, in light of the above, for the applicant‟s counsel to have
sought arguing that a fraud had been perpetrated in the awarding of the
contract. It was not raised in the applicant‟s affidavits, nor was it relied upon in
the applicant‟s heads of argument. Fraud, to which it was contended the CEM
was a party, was first raised during argument before Court on the papers as it
stood.
[16] The high water mark of the applicant‟s case as set expressly out in its affidavit
is that bidders such as Malaka, in not ensuring its product is 100% compliant
with the technical specification prior to lodging their bid, had acted dishonestly
by misleading the CEM and other bidders . Applicant‟s counsel endeavoured to
persuade me, on the papers as it stood, that a fraud had been perpetrated to
which the CEM‟s representatives were a party.
[17] The theory advanced by the applicant at the hearing is that, on a balance of
probability, the representation of Malaka that its PPD boxes met the
specifications set in the tender documents was fraudulent and that CEM was
party to such misrepresentation. D&D‟s counsel endeavoured to do so by
extensive reference to a multitude of documents, the contents of which it was

11 Public Protector v Speaker of the National Assembly and others [2020] 4 All SA 776 (WCC)
at [18]
12 108 of 1996, section 27(1)(b).
13 Above, section 27(3)
14 Section 1 of the National Norms and Standard for Domestic water and Sanitation Services
(GN 982 in GG 41100 of 8 September 2017 published in terms of the Water Services Act 108
of 1998
7
submitted substantiate the argument that a fraud had been perpetrated in the
awarding of the tender and conclusion of the contract as it was.
[18] It is not within the ambit of this judgment to consider all the elements to
establish fraud in criminal or civil law and the minutiae of differences across
various fields of law where fraud and its associated forms exist. Generally, it
requires, whether in criminal15 or civil law,16 at least proof of the alleged
perpetrator having acted unlawfully in making a false representation with the
intention to deceive which causes actual prejudice or which, in criminal law and
delict17, is potentially prejudici al to another. In the law of contract, the
requirements are, amongst others, that the perpetrator must have made a false
representation knowing it to be so with the intention of inducing a representee
to act in accordance with the misrepresentation.18
[19] Loss of profit suffered by an unsuccessful tenderer as a result of dishonesty
and fraud is claimable in delict, should all the other requirements of delict be
met as confirmed by the Supreme Court of Appeal in Transnet v Sechaba
Photoscan.19 It was followed in Esorfranki .20
[20] T he applicant‟s endeavour to establish a fraud to have been perpetrated
requires the Court to draw a multitude of inferences to arrive at such a
conclusion.
[21] Regarding criminal trials where inferential reasoning is required upon
circumstantial evidence this well-known passage in R v Blom21 deserves
attention:
“In reasoning by inference there are two cardinal rules of logic which cannot
be ignored:

15 Burchell Principles of Criminal Law 742; Snyman ‟s Criminal Law 461
16 In contract or delict, for example.
17 Esorfranki (Pty) Ltd v Mopani District Municipality at [88]
18 See Quartermark Investments (Pty) Ltd v Mkhwanazi and another [2014] 1 All SA 22 at
23; (SCA) ; Ruto Flour Mills (Pty) Ltd v Moriates 1957 (3) SA 113 (T); Hulett v Hulett [1992] 2 All
SA 308 (A) at 324
19 2005 (1) SA 299 (SCA) at [16]
20 At [91]
21 1939 AD 388 at 202 - 203
8
(1) The inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct. ”
[22] As regards civil cases the Supreme Court of Appeal found as follows:
“(T)he court, in drawing inferences from the proved facts, acts on a
preponderance of probability. The inference of an intention to prefer is one
which is, on a balance of probabilities, the most probable, although not
necessarily the only inference to be drawn. In a criminal case, one of the two
cardinal rules of logic referred to by Watermeyer JA in R v Blom is that the
proved facts should be such that they exclude every reasonable inference
from them save the one to be drawn. If they do not exclude other reasonable
inferences then there must be a doubt whether the inference sought to be
drawn is correct. This rule is not applicable in a civil case. If the facts permit of
more than one inference, the Court must select the most plausible or probable
inference. If this favours the litigant on whom the onus rests he is entitled to
judgment. If, on the other hand, an inference in favour of both parties is
equally possible, the litigant will not have discharged the onus of proof. '22
[23] Having regard to the essential elements required to establish fraud, it is
unsurprising that fraud is not easily inferred. The more so, I daresay, in the
absence of viva voce evidence at trial tested through cross examination a nd
where a Court is able to assess the demeanour of witnesses. Furthermore, the
respondents did not have the opportunity of specifically addressing allegations
of fraudulent conduct in their affidavits as it was not expressly at issue in D&D‟s
papers . It is trite in motion proceedings that a founding affidavit is pleadings as
well as evidence in which the cause of action, as it were, should be properly
pleaded.
[24] For fraud to be established, the elements required to be proven include
culpable conduct of the perpetrator as well as causation. Dolus is an entirely
subjective element which requires an investigation as to the mind-set of a
perpetrator. To do so on paper only is fraught with d anger, the more so in the
circumstances prevailing in this matter. In my view dolus is not the most

22 Cooper and Another NNO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA) at 1027E
– 1028A
9
probable inference that might be drawn on the facts as it stands. Assuming
there was a misrepresentation, it is equally likely that it may have been the
result of sheer incompetence or negligence. It may also have been innocently
made, or upon an incorrect interpretation of the tender and its requirements as
well as the tendering process.
[25] Even if it is assumed for the purposes of argument that a misrepresentation had
been made with the intention to deceive, it is equally likely that the CEM‟s bid
adjudication committee, which is the entity deciding to award a tender, was not
part of any misrepresentation, if not the bid evaluation committee. Both factual
and legal causation must be shown by D&D. Much has been written about the
concept of causation. It is not as easily determined as one might think. It
involves the concept of factual as well as legal causation. In International
Shipping Co (Pty) Ltd v Bentley23 it was framed as follows:
“The enquiry as to factual causation is generally conducted by applying the so-called
'but-for' test, which is designed to determine whether a postulated cause can be
identified as a causa sine qua non of the loss in question. In order to apply this test
one must make a hypothetical enquiry as to what probably would have happened but
for the wrongful conduct of the defendant. This enquiry may involve the mental
elimination of the wrongful conduct and the substitution of a hypothetical course of
lawful conduct and the posing of the question as to whether upon such an hypothesis
plaintiff's loss would have ensued or not. If it would in any event have ensued, then
the wrongful conduct was not a cause of the plaintiff's loss; aliter, if it would not so
have ensued. If the wrongful act is shown in this way not to be a causa sine qua non
of the loss suffered, then no legal liability can arise. On the other hand,
demonstration that the wrongful act was a causa sine qua non of the loss does not
necessarily result in legal liability. The second enquiry then arises, viz whether the
wrongful act is linked sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This is basically a juridical
problem in the solution of which considerations of policy may play a part…”
[26] The court approvingly quotes from Law of Torts24 the following:
“'The second problem involves the question whether, or to what extent, the defendant

23 1990 (1) SA 680 (A) at 700 ff. See Heyns v Venter 2004 (3) SA 200 (T) at [9] to [11]
24 Fleming, 7th Edition at 173
10
should have to answer for the consequences which his conduct has actually helped
to produce. As a matter of practical politics, some limitation must be placed upon
legal responsibility, because the consequences of an act theoretically stretch into
infinity. There must be a reasonable connection between the harm threatened and
the harm done. This inquiry, unlike the first, presents a much larger area of choice in
which legal policy and accepted value judgments must be the final arbiter of what
balance to strike between the claim to full reparation for the loss suffered by an
innocent victim of another's culpable conduct and the excessive burden that would
be imposed on human activity if a wrongdoer were held to answer for all the
consequences of his default .”
[27] In essence the issue is the extent to which liability might be limited for conduct
which factually resulted in the loss suffered particularly with regard to
remoteness. A compromise is to place emphasis on whether a sufficiently close
connection exists between the harmful conduct and its factual result having
regard to the circumstances of the case, and policy considerations such as
fairness, reasonableness and justice.25 In Fourway Haulage SA (Pty) Ltd v SA
National Roads Agency Ltd26 it was held that such a compromise is not a
substantive test as what is fair, reasonable and just which may be too
dependent on a judge‟s subjective idiosyncrasies and should be limited in its
application.27 The court held as follows:
“…the existing criteria of foreseeability, directness, et cetera , should not be applied
dogmatically, but in a flexible manner so as to avoid a result, which is so unfair or
unjust that it is regarded as untenable. If the foreseeability test, for example, leads to
a result which will be acceptable to most right-minded people, that is the end of the
matter. ”28
[28] The Court in that matter applied both the direct consequences approach and
the foreseeability approach to the facts and found that in either case the harm
was not too remote and imposing liability on the wrongdoer was not in any way
untenable. In doing so, considerations of fairness and equity “ …were not used
as a means to determine whether liability should be imposed, but rather to

25 S v Mokgethi 1990 (1) SA 32 (A) at 40I ff
26 [2009] (1) All SA 525 (SCA) at [31]
27 Above at [33]
28 Above at [34]
11
assess whether the application of the tests produced an acceptable result. ”29
Various factors may be taken into account such as directness, reasonable
foreseeability; fairness, justice, reasonability, legal policy and the absence or
presence of a novus actus interveniens.30
[29] With the above in mind, I cannot agree the evidence before me in the prevailing
circumstances enable the drawing of inferences to the extent it may be held
probable that any misrepresentation are causally linked to the consequences
as D&D‟s counsel contends .
[30] In the result I decline to draw the inferences required for D&D‟s contention to be
justified. I am not satisfied fraud has been adequately established. It seems to
me for much the same reasons mala fide conduct has not been shown to exist
in the awarding of the contract to Malaka. In the result, the application for an
interim interdict must fail.
[31] Even if I am wrong, it is my view that the application for an interim interdict must
fail in that D&D has not met the threshold of establishing at least some of the
requirements needed.
[32] From Sechaba and Esorfranki it is clear that a claim in delict is available to an
unsuccessful bidder for loss of profit . In Sechaba the plaintiff (respondent on
appeal ) a quo had claimed damages for loss of prospective profits suffered
upon the award of a purchase contract to another following a fraudulent tender
process. The defendant a quo (appellant) had conceded damages had been
suffered and that it was liable for it. The only question remaining was the
quantum of damages. In the course of its judgment the Court found the idea
that loss of profit was not recoverable in delict was unfounded. The award of
delictual damages seeks to compensate the difference between the actual
position that obtains as a result of the delict and the hypothetical position that
would have obtained but for the delict.31 The appeal was dismissed.

29 Van der Walt & Midgley Principles of Delict Fourth Edition par 181 and the judgments there cited as well
as their valued interpretation
30 Standard Chartered Bank of Canada v Nedperm Bank Ltd [1994] 2 All SA 524 (A) at 537
31 Sechaba at [15] and [ 16] The Court observed there is no practical value in the distinction
between positive and negative interesse in the calculation of damages.
12
[33] In Esorfranki the plaintiff, an unsuccessful tenderer for the construction of a
water pipeline for the Mopanu District Muncipality , alleged the contract was
awarded to another as a result of wrongful and intentional conduct amounting
to dishonesty and fraud. In consequence it alleged it had suffered a loss of
profit as a result and claim ed damages in delict from the municipality and the
successful tenderer. The trial court a quo found in favour of th e defendant. On
appeal the Supreme Court of Appeal confirmed Sechaba .32 It found the
decision maker had acted deliberately and dishonestly, with bias in favour of
the successful bidder and that it had acted in bad faith with an ulterior motive as
well as fraudulently. However, the appeal was dismissed because the majority
found the appellant had failed to establish causation in linking the harm
suffered by the appellant to the municipality‟s wrongful and unlawful conduct.33
[34] In its heads of argument, the applicant submitted that a suitable alternative
remedy in claiming damages was not feasible because of the practicalities of
such a claim. The reasons advanced were that harm suffered by D&D is on-
going and accumulating over time. It has a duty to mitigate its losses.
Practically it cannot compute the quantum of its damages on a sliding scale
over an indefinite period. Nothing further of any consequence was raised during
argument before Court in this regard.
[35] I disagree with D&D‟s submissi ons regarding the availability of an alternative
suitable remedy. In my view the applicant has a suitable alternative remedy at
its disposal, namely a claim for loss of profit in delict. I can find no adequate
reason as to why D&D would be unable to establish its quantum of damages
adequately for the purposes of issuing summons, followed by possible
confirmation and perhaps amendment upon discovery and the like. Mitigation of
damages is for a defendant to rise. It bears the onus of proving that a plaintiff
ought to have prevented an accumulation of loss, which our courts are
circumspect in upholding. The duty to mitigate goes no further than to require
an injured party to act reasonably regard being had to the prevailing

32 Esorfranki at [91]
33 Esorfranki at [102] ff. See the judgment of Mbatha JA at [142] regarding different grounds for
the failure to establish causation.
13
circumstances.34 In my view, in the circumstances of this case, reliance on a
duty to mitigate damages is more apparent than real in justifying the absence of
a suitable alternative remedy.
[36] The test as to whether the apprehension of imminent irreparable harm is well -
grounded is objective. In other words, if a reasonable person in the prevailing
circumstances consider irreparable harm will follow should interim relief not be
granted and the final relief prayed for be granted in due course.35
[37] I am not persuaded the applicant has shown on the papers that it had or is
suffering irreparable and imminent harm in consequence of the continuing
execution of the contract. Firstly, there is no evidence before Court that the
applicant is suffering any harm at all. It is the applicant‟s case as record ed in its
heads of argument that it is faced by threat of irreparable harm which is
financial in nature. It is alleged it will suffer a significant loss of income.
Secondly, there is no evidence that should the order be granted, the contract
would revert to them. To the contrary, should the contract be set aside, the
result would be that there is no service provider to step into Malaka ‟s shoes and
there would be nobody from which the order and/or purchase the supplies or to
install same as was required as per the contract. For a new service provider to
be appointed, the process by virtue of which a service provider might be
contracted with would have to start afresh, save perhaps where an emergency
requires the urgent appointment of someone to execute the duties envisaged.
There is no evidence of any emergency or urgency in making an appointment
in the immediate future.
[38] For that matter, there is no compelling evidence before me that on a balance of
probabilities the contract would have been awarded to the applicant had the
award not been made as it was. What is more, it is common cause between the
parties that the contract was on an „ as and when required basis ”. There is no
evidence before this Court as to when meters would be installed and in
particular, if any were to be required and/or installed in the time remaining for

34 De Pinto v Rensea Investments (Pty) Ltd 1977 (2) SA 1000 (A) as amended in De Pinto v
Rensea Investments (Pty) Ltd 1977 (4) SA 529 (A)
35 Weinert and another v Municipality of the City of Cape Town and others [2023] 1 All SA 536
(WCC) at [12]
14
the duration of the contract. It follows that the applicant has failed to indicate
irreparable harm and that it is imminent.
[39] I am of the view that the balance of convenience does not favour D&D. In
Public Protector v Speaker of the National Assembly and others a full court
held that were a Court is required to consider whether to grant an interim
interdict, it must do so in a way that promotes the objects, spirit and purpose of
the Constitution . Should an interdict now be granted, regard being had to the
time left for the contract, it will serve little if any purpose.
Conclusion
[40] By virtue of the view I take of the matter, I do not express any view in respect
of any other issue pertaining to the requirements of an interim interdict. In
particular I do not express any opinion as to the existence of a clear right.
[41] Having regard to what has been set out herein before and the conclusions I
have come to, I make an order as set out below.
Order
[42] Part A of the application as per the notice of motion for an interim interdict is
dismissed:
[43] The first applicant shall pay the first and second respondents ‟ costs of Part A of
the application.


N. S. KRÜGER
NAME OF JUDGE
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG

15
Electronically submitted
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to the parties /
their legal representatives by email and by uploading it to the electronic file of this
matter on CaseLines. The date of the judgment is deemed to be 19 May 2025.

For the first applicant: Adv A Bishop instructed by Dewey Mclean Levy Inc
For the first respondent: Adv K Potgieter instructed by Du Plessis, de Heus
& Van Wyk
For the second respondent: Adv T G Ngobeni instructed by Mabasa Attorneys
Date of hearing: 13 March 2025
Date of judgment: 19 May 2025
1