IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025 -043172
In the matter between:
PRO SECURE (PTY ) LTD Applicant
And
MOGALE CITY L OCAL MUNICIPALITY First Respondent
MAKHOSANA MSEZANA Second Respondent
WENZILE PHAPHAMA TRADING AND PROJECTS Third Respondent
MABOTWANE SECURITY SERVICES CC Fourth Respondent
JUDGMENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 16 May 2025
Signature:
2
NYATHI J
A. INTRODUCTION
[1] This is an urgent application brought in terms of Rule 6(12) of Uniform Rules of
Court wherein the applicant seeks an interim interdict restraining the
implementation of tender number RFP no: CDS(PS) 01/2024 ("the tender")
awarded to the third respondent ("Wenzile") pending a final determination of Part
B, being the review application, wherein the applicant seeks an order setting
aside the tender award.
[2] The first, second and third respondents oppose this application. The fourth
respondent ("Mabotwane") filed an explanatory affidavit wherein it confirms its
support for the interim interdict and further abides by the decision of this court .
[3] Mabotwane is the current service provider for the first respondent ("the
Municipality") and, like the applicant, is also an unsuccessful bidder. The
services of Mabotwane were terminated by the Municipality and Wenzile is
required to commence services on 0 1 May 2025.
[4] This application was heard on an urgent basis before me. The applicant’s cause
and substantiation for urgency was primarily that, should an interdict not be
granted, the Municipality intended to implement the tender award, appoint
Wenzile Phaphama Security in terms of the tender and commence the contract
by or on 1 May 2025.
[5] At the commencement of the hearing, Mr Muza came on record as counsel for
the third respondent Wenzile Phaphama Security . On behalf of the third
respondent a document titled "Third respondent’s points of law” running into
some 32 pages had been filed on the previous evening . There was no
explanation whatsoever. There was opposition from the applicant’s counsel .
3
[6] The court ruled that Mr Muza could not continue with his points of law due to the
flagrant non -compliance with the Uniform rules of court, more particularly rule
6(5) (d)(iii).
[7] On behalf of the applicant, Mr Lüderitz submitted that the applicant would
demonstrate that it has established a clear right as opposed to simply a prima
facie right. This is one of the requisites of an interim interdict, which the applicant
requires. The others being : irreparable harm, no other satisfactory remedy and
a balance of convenience .1
[8] The applicant relies on the Municipality’s Supply C hain Management (‘SCM’)
Policy2 as well as the invitation to submit the Request for a Proposal (‘RFP’).
These contain the terms and conditions subject to which the adjudication
process is to be considered.
[9] In its clause 25 (2) and (3) the policy contemplates a two -stage bidding process.
It reads as follows:
“(2) In the first stage technical proposals on conceptual design or performance
specifications should be invited, subject to technical as well as commercial clarifications
and adjustments.
(3) In the second stage final technical proposals and priced bids are invited from only
the bidders who submitted proposals. ”
[10] In clause 4 it provides for a two -envelope bidding system. This entails the
submission of two discreet envelopes . The first envelope contains technical
proposals that are concerned with functionality. Only those bidders that qualify
are then invited to submit the second envelope which contains p ricing proposals .
1 Setlogelo v Setlogelo 1914 AD 221 .
2 Annexure A – Supply Chain Management Policy in terms of the Municipal Finance Management Act, 2003.
4
[11] The specifications in the RFQ are compiled by a Bid S pecification Committee.
This committee is created by clause 27.2 which provides that:
“(1) A bid specification committee must compile the specifications for each procurement
of goods or services by the Mogale City Local Municipality.
(2) Specifications - (a) must be drafted in an unbiased manner to allow all potential
suppliers to offer their goods or services, ”
[12] Clause 28 deals with the functions of the Bid Evaluation Committee (‘BEC’) ,
which are :
“… to evaluate bids in accordance with
1. The specifications for a specific procurement.
2. The points system set out in terms of paragraph 27(2)(h).”
[13] The preference point system envisaged is dependent on value and is either on
a 80:20 or 90:10 basis. In the instant case the basis is recorded as 90:103 given
that the value of the tender is in excess of R50 million.
[14] What it effectively comes down to , Mr Lüderitz submitted, is that 90 points are
awarded for price and 10 points are awarded for specific goals that have been
clearly spec ified in the invitation to submit a tender .
[15] The policy document then records that “the points scored must be round ed off to
the nearest two decimals. The contract must be a warded to the tender er scoring
the highest points .”
3 Clause 45.
5
[16] A contentious clause in the invitation to tender is clause 39 which appears to
conflict with clause 46(8) of the municipality ’s own policy. It provides that:
“The lowest or any tender will not necessarily be accepted and Mogale City reserve s
the right to accept a tender in whole, or, in part .”
[17] The cause of the applicant’s dissatisfaction is t hat the municipality has placed
reliance on clause 39 and took into account criteria that is not in the RFQ and its
own policy to award the tender to Wenzile , to its detriment and that of
Mabotwane . This is a third scoring criterion called “special goals ”.
[18] Mr Nalane submitted on behalf of the first and second respondents that the facts
are largely common cause. The main point in dispute is whether price should
have been the sole determinant of the winning tender . In other words, should the
applicant obtain the tender , simply because its price was cheaper?
[19] On the question raised above, I will defer to the court that hears the review in
due course. The details pertaining to how the bid was evaluated, will only help
enlighten me on whether there are prospects of success in the review, which is
relevant to determining the grant or refusal of the temporary interdict.4
[20] The thrust of the first and secon d respondents ’ case is that the mere fact that the
applicant scored the highest points on price is not determinative of whether it
won the tender or not. The applicant’s contention is that absent the application
of the criterion of “special goals”, it would have been awarded the tender . This is
how it establishes its prima facie right.
4 Webster v Mitchell 1948 (1) SA 1186 at 1189. Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (N)
at 383 F.
6
[21] “Where the right asserted by the applicant is prima facie established although
open to some doubt ”, the applicant , on proving irreparable injury, had fulfilled the
requirement for an interim interdict.5
[22] The irreparable injury or harm to the applicant, is the likelihood of the municipality
rolling out the tender in the face of the applicant’s review application , which is
yet to be judicially considered.
[23] It is the applicant's case that there is no other satisfactory alternative remedy for
it in due course in the absence of the interim intervention that it seeks.
[24] The balance of convenience : this requirement calls for the court to exercise its
discretion and weigh amongst other considerations, the prejudice to the
applicant if the interdict is withheld , against the prejudice to the respondents if it
is granted.6
[25] In the result, the applicat ion must succeed. The successful litigant is entitled to
its costs as is customary in the absence of a case being made to the contrary.
[26] The following order is made: the draft order filed under CaseLines 12 -1 to 12 -3
is made an order of court.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
5 Kilroe v Kilroe 1928 WLD 112 at 114 -15; quoted by C.B. Prest – the Law and Practice of Interdicts (1993) at p54.
6 Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton & another 1973 (3) SA 685 (A) at 691D -E.
7
Date of hearing: 23/04/2025
Date of Judgment: 16 May 2025
On behalf of the Applicant : Mr Lüderitz SC
With him: Mr GJ Lo tter
Instructed by: Cox Yeats
c/o Couzyn Hertzog & Horak , Pretoria
E-mails: JSmit@coxyeats.co.za
On behalf of the 1st and 2nd Respondents : Mr Sibeko SC
With him: Mr F. Nalane SC (Who made the submissions)
With him: Ms S. Magxaki
Attorneys: Madhlopa & Thenga Inc.
E-mails: hugo@madhlopathenga.co.za
On behalf of the 3rd Respondent: Adv Muza
With him : Adv Pooe
3rd Respondent’s attorneys: Mkhize Attorneys.
On behalf of the 4th Respondent: Albert Hibbert Attorneys Inc
Delivery : This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand -
down is deemed to be 16 May 2025.
1
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA )
CASE NO: 043172/2025
Roll number: 56
On 16 May 2025
Before the Honourable Justice
Court 4F
'"l -;_ -iS .,,)
PRO SECURE (PTY) LTD A PLICANT
C,v 1'111 I 0!4
---:-,~~'
and
MOGALE CITY LOCAL MUNICIPALITY FIRST RESPONDENT
MAKHOSANA MSEZANA SECOND RESPONDENT
WENZILE PHAPHAMA TRADING AND PROJECTS CC THIRD RESPONDENT
MABOTWANE SECURITY SERVICES CC FOURTH RESPONDEN T
This order is made an order of court by the Judge whose name reflects herein, duly
stamped by the Registrar of the court and is submitted electronically to the parties/their
legal representat ives by e-mail. This order is further uploaded to the electronic file of this
matter on Caselines by the Judge or the Judge's secretary. The date of this order is
deemed to be the date reflected hereinabove.
D~ORDER
2
Having read the papers filed of record and considered the matter and having heard
counsel for the parties the following order issues:
1. This application is heard as an urgent application and the necessary condonation
is granted to the Ap iGa~t--iA-terr.ns..olRule .6.(J2) e Uniform Rules of Court in
RCGJ..;TrAP. Ot-T .: - J T -, SOUTH AFRICA
C, .,
respect of the non-em~iance with the prescribed tim limit an forms, Uniform
Rules, and Practice Directive.
2[C5 -Gj-16
2. That pending the fi al determination ofd-liJ.ee.Apli)licant's review (P rt B) of the First
h.~
Respondent's ("Mu icipality") decision _t~~~ard the tender' Jmber RFP no:
CDS(PS) 01/2024-A for the appointment of a security service provider to render
private security services to the Municipality for a period of 36 months ("the tender")
to the Third Respondent:
2.1 the First and Second Respondents are interdicted and restrained
from in any way implementing or continuing to give effect to the
Municipality 's decision to award the tender to the Third Respondent ;
2.2 the First, Second and Third Respondents are interdicted and
restrained from in any way concluding or giving any further effect to
any service level agreement which may have been concluded
between them pursuant to the award of the tender;
3
2.3 the Third Respondent is interdicted and restrained from in any way
providing any services to the Municipal ity to give effect to the award
of the tender.
2.4 the above orders will operate as interim relief pending the outcome
of the review application in Part B.
3. The costs of Part A are costs in the review application (Part 8), including the costs
of senior counsel on scale C and junior C.9b1J1 el on scale B.
- IP"-,. .,.., • ., • ,,
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l-------Counsel for the Applicant:
Adv. I Pillay SC
031 305 1771
pillayi@me.com
Adv. GJ Lotter
083 290 0223
gjl@lawcircle .co.za
Instructed by:
Cox Yeats
Ms J. Smit
0318353112
JSmit@coxyeats .co.za