SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 11183/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: Yes
DATE: 23 July 2025
SIGNATURE:
In the matter between:
NGARAGA PROPERTIES (PTY) LTD APPLICANT
AND
MEC FOR EDUCATION, LIMPOPO PROVINCE FIRST RESPONDENT
HEAD: LIMPOPO DEPRATMENT OF EDUCATION SECOND RESPONDENT
NATIONAL PRIDE (PTY) LTD THIRD RESPONDENT
In re the matter between:
NGARAGA PROPERTIES (PTY) LTD APPLICANT
AND
MEC FOR EDUCATION, LIMPOPO PROVINCE FIRST RESPONDENT
HEAD: LIMPOPO DEPRATMENT OF EDUCATION SECOND RESPONDENT
NATIONAL PRIDE (PTY) LTD THIRD RESPONDENT
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand -down is
deemed to be 23 JULY 2025.
JUDGMENT
MASHIFANE AJ:
INTRODUCTION
1. This is an application for an interim interdict pending the finalisation of the
review application brought by the applicant against all respondents under the same
case number. For purpose of this judgment the first and second respondent will be
referred to as the department. The applicant seeks review of the department's
decision to award a tender to the third respondent on two main grounds. Firstly, that
the applicant was unfairly excluded during the functionality stage of evaluation and
secondly that the hence the third respondent was a party to a joint venture known as
National Pride/Life Moments Holdings (Pty) Ltd JV (Joint Venture) which was a
competitor in the tender process then the third respondent should have
discussed/consulted and ma de some agreements with the JV regarding the bid
should have been disqualified from the tender process.
BACKGROUND
2. The department invited the interested parties to bid under bid number
LDE/801/2024/25 for manufacturing, packing, warehousing and distribution of
sanitary pads for girls in quintile 1 -3 public schools and special schools in Limpopo
Province for a period of three years.
3. The applicant and the third respondent were among other bidders who
responded to the invitation and submitted their proposal. Unlike other companies,
their bids together with that of Fastol/Morgan Pillay Surgical Manufacturing JV
(Fastol) passed the preliminary stage and were subjected to evaluation on
functionality.
4. During the adjudication process the BEC (Bid Evaluation Committee)
disqualified the applicant and Fastol for inspection in loco for they were deemed
nonresponsive in the functionality requirements. The third respondent as a
successful bidder was eventually recommended to be awarded the tender.
5. On 26 August 2024 the third respondent and the department entered a written
agreement in terms of which the third re spondent was contracted to produce and
supply sanitary pads to one hundred and ninety -six thousand girls in quantile one to
three in public schools and special schools over a period of 36 months.
6. On 9 October 2024 the applicant instituted review procee dings in this Court
seeking an order reviewing and setting aside the Department's impugned decision.
The applicant requested the department in accordance with Rule 53 to dispatch a
record of the decision sought to be impugned and the department failed to c omply.
The applicant then resorted to compel the department through an urgent application
which was brought on 17 December 2024. The record was since received though the
applicant avers that it is not a complete record.
7. On 15 January 2025 the applicant instituted this application on urgent basis
seeking on order interdicting and restraining the respondents from taking further
steps to perform their respective obligations in terms of the service level agreement
concluded on 26 August 2024 pending the review application.
8. At hearing of this application, I was informed that on 4 February 2025 the
application was removed from the urgent roll due to fact that it consisted of more
than 500 pages. The matter was brought before this Court as a special alloca tion on
directive from the Judge President of this Division
FACTS
9. The tender document provided that for the bidder to qualify for inspection in
loco it must demonstrate in the functionality criteria the existence of manufacturing
plant and functional manufacturing equipment/machinery and failure to of the bidder
comply with the bid requirements will result with the bidde r not qualified for
inspection in loco.
10. The terms of reference in these criteria read as follows:
"The bidder should submit coloured photos of the following:
(a) "Existence of functional industrial equipment/ machinery (showing the
serial numbers).
(b) Proof of residence and/ existing signed lease ( no intent lease will be
considered)- (picture of the buildings showing the name of the tenderers
company and physical address must be attached.) which must be the address
on the S801 and must be the same as preferred address on CSD.
(c) ....
N.B all (a, band c) will be verified during inspection in loco to the address
provided by the bidder as per item (b)"
11. On 12 July 2024 the BEC concluded its first evaluation report and same was
submitted to the BAC for adjudication. The report submitted to the BAC (Bid
Adjudication Committee) indicated that the applicant could not qualify for inspection
in loco and was deemed nonresponsive. The grounds for exclusion were recorded
as follows:
• "Picture of the building does not show the physical address as per
number (b) of functionality.
• Physical address on SBD1 does not correspond with the preferred
address for an existing manufacturing plant on CSD printed by the
Department."
12. On 16/07/2024 the BAC referred the report back to BEC with instructions that
the committee should include the inspection report.
13. The BEC revised its report to include the inspection report and same was
resubmitted on 18/07/2024. The revised report by the BEC recorded the reasons for
disqualifying the applicant for inspection in loco as follows:
• "The Coloured picture of the building does not show the physical
address of the bidder as per number (b) of the functionality.
• Physical address (stand 1 […], Limeroc business par k centurion) on
SBD1 preference address on CSD and lease agreement attached to the bid
document is the same but the business profile indicates that ''physical
address and access to manufacturing plant to be provided ( on request) to
stakeholders with vested interest".
• The department requested the physical address through the advertised
terms of reference and the bidder failed to provide as per number (b) of
functionality which states that "Proof of residence and I existing signed l ease
(no intent lease will be considered) - (picture showing the name of the
tenderers company and physical address on the SBD1 and must be the same
as the preferred address on CSD. Failure of the bidder to submit (a) and (b)
with the bid document will not be qualified for inspection. In loco.
14. The applicant attached to the bid documents the following in attempt to
comply with the requirements on functionality:
14.1 colour picture depicting the manufacturing machinery called "full servo
sanitary pad making machine".
14.2 A separate colour picture of the serial number of the Machinery plant.
14.3 SBD1 form reflecting the business address of the applicant as stand
1[…], Limerock Business Park, Knoppieslaagte, Centurion, 0157.
14.5 CSD registration report reflecting the address as "stand 1[…], Limerock
Business Park, Knoppieslaagte AH, Centurion, City od Tshwane, Gauteng,
0157.
14.6 COR 14.3 registration certificate issued by the Commissioner of
Companies and Intellectual Property Commission reflecting the a ddress as
"Stand 1 […] Umeroc Business Park, Knoppieslaagte, Centurion, Gauteng,
0157.
14.7 A rent to buy lease agreement concluded between Dexalinx Property
Investment & Development (pty) Ltd and the applicant dated 14 June 2023.
The address provided on the lease agreement as the leased premises is
described as "A Portion of The remainder of Portion 331 of the Farm
Knoppjeslagagte, 385 in the Township to be known as Peach Tree Extension
24, Registration Division J.R, Province Gauteng, In extend of 8742sq m on Ext
24 Square meters.
14.8 The colour picture of the applicant's factory bearing the trading name of
the applicant Lindiwe Sanitary Pads Branding without physical address.
15. The score allocated for functional manufacturing plant was 65 points
subdivided as follows:
(a) 25 points for existence of the functional industrial equipment/ machinery
showing serial number.
(b) 15 points for proof of residents and /existing signed lease agreement
residents and/existing signed lease agreement.
(c) 25 points f or the practical demonstration process of manufacturing
process of sanitary pad.
16. When scoring the applicant on functionality the BEG members allocated zero
points as global score for both (a) and (b).
17. The allocation of points to the third responde nt was subdivided as follows: 25
points on (a) and 15 points on (b).
PREFERENTIAL PROCUREMENT POLICY1
18. The evaluation process of tenders on functionality is regulated by Regulation
5 which reads as follows:
5(1) An organ of stated must state in the tender documents if the tender will
be evaluated on functionality
(2) The evaluation criteria for measuring functionality must be objective.
(3) The tender documents must specify-
(a) The evaluation criteria for measuring functionality;
(b) The points for each criteria and, if any, each sub-criterion; and
(c) The minimum qualifying score for functionality.
(4)…(7).
PFMA SCM INTSRUCTIOIN No 03 OF 2021/20222
19. On 31/03/2022 the Treasury published a document instruction titled PFMA
SCM Instruction No 03 of 2021/2022 the purpose of which was to enhance the
compliance, transparency and accountability in the procurement of goods and
services.
20. The applicant avers that when evaluating the tender process, the department
is required to evaluate S BD4 information provided by the bidder which is declaration
by the bidder to the effect that the information provid ed was arrived at independently
and without collusion with the other competing bidders.
REQUIREMENTS FOR AN INTERIM INTERDICT
1 Preferential Procurement Policy Regulations, 2017
2 Public Finance Management Act, 1 of 1999
21. It is trite law that in an interlocutory interdict the following requirements must
be adhered to:
21.1 That the right subjected to the review in the main application and which
it seeks to protect by means of the interim order is clear and if not clear , is
prima facie established, though open to some doubt;
21.2 That if the right is only prima facie established, there is well grounded
apprehension of an irreparable harm if the interim relief is not granted and it
will ultimately succeed in establishing its right;
21.3 That the balance of convenience favours the granting of the interim
relief, and
21.4 That the applicant has no other satisfactory remedy
22. In Setlogelo3 the Court set the following as the classical requirements for an
interlocutory interdict which were subsequently followed in many lines of cases:
(a) a prima facie right;
(b) a well-grounded apprehension of irreparable harm if the interim relief is
not granted and the ultimate relief is eventually granted;
(c) a balance of convenienc e in favour of the granting of the interim relief;
and
(d) the absence of any other satisfactory remedy.
23. Clayden J in Webster v Mitche ll 1948 (1) SA 1186 (W) , at 1189, stated as
follows:
"... the right to be set up by an applicant for a temporary inte rdict need not be
shown by a balance of probabilities. If it is "prima facie established though
open to some doubt" that is enough ..."
24. The applicant's claim is that its prima facie right is founded in the provisions of
Section 217 of the Constitution which requires that procurement legislation,
3 Setlogelo v Setlogelo 1914 AD 221
regulations, and policies be implemented in accordance with a procurement system
that is fair, equitable, transparent, competitive and cost effective.
25. The applicant asserts that there was substantial compliance with the
functionality requirement and that the applicant should have been scored to the
extent of its compliance. The documents s ubmitted were enough to proof that there
was a manufacturing plant in existence and the address would have been verified
during the inspection in loco.
26. The department in its answering papers and during arguments before the
court maintain that the proc ess was fair and the applicants was excluded from
functionality because it failed to comply with mandatory requirement with regards to
coloured photo or picture of the manufacturing plant with the name and address of
the applicant outside.
27. The department went further to aver that as on 12 of July 2024 there was no
iota of evidence that the applicant if granted the bid was going to be able to provide
and deliver the sanitary pads in respect of the bid. This averment is misplaced as it is
based on the BEC's failure to allocate proportional score to the applicant.
28. If the applicant was not excluded at functionality stage, it would have
participated in the whole process to the final decision. I have already indicated above
that the first report by BEC d ate 12/07/2024 excluded the applicant at functionality
stage and one of the reasons was that the applicant could not proof existence of the
manufacturing equipment or machinery. This ground was excluded from the second
report.
29. The BEC was fully aware or ought to have been aware of the requirements
under Regulation 5 in relation to scoring or allocation of points, and it cannot be
explained or understood why the criteria used to allocate points to the third
respondent was not used in respect of the applicant. The failure by the department to
fully comply with paragraph (b) of Regulation 5 (3) which is mandatory renders the
fully comply with paragraph (b) of Regulation 5 (3) which is mandatory renders the
evaluation process unfair and violated the applicant's right to fair and equal
evaluation process.
30. The applicant as a ten derer has right to participate in a process that is fair
transparent and above all lawful irrespective of whether it was ultimately going to be
awarded the tender or not. In my opinion the fact that the applicant failed to attach a
coloured photo depicting the address cannot be the only reason which on its own
disqualified the applicant for the entire bid.
31.1 conquer with the applicant that the absence of the address on the coloured
photo is something that could have been cured during the verification pr ocess when
inspection in loco was conducted. The documents submitted by the applicant were
enough to prove that there was a factory and manufacturing plant in existence. The
applicant did not receive a fair, objective and equal treatment when points were
allocated.
32. The second ground of review by the applicant is the failure of the department
to disqualify the third respondent from the bid process when it became aware that on
the information at its disposal there was a collusion between the third respon dent
and the Joint Venture. This argument rest of the fact that the third respondent and
Life Moments Holding (pty) Ltd entered into a joint venture called National Pride/ life
moments Holdings (pty) Ltd JV. The bid documents of the third respondent and th e
JV were signed by the same person including the pricing.
33. The introduction of Instruction 03 of 2021/2022 was aimed at among others
avoiding as situation where bidders would collude on the bid requirements giving the
colluding parties unfair advantag e to the detriment of others. Allowing bidders to
participate both as individual entity and in a form of joint venture would amount to
unfair dual advantage towards other bidders and defeat the purpose of the
Instruction and contravenes Sections 217 of the Constitution. The third respondent's
tender document and that of the JV were completed and signed by same person
tender document and that of the JV were completed and signed by same person
who is the manager of the third respondent. The third respondent failed to dispute
this allegation serious as they are and the department is in no position to answer to
these allegations.
34. For the applicant to succeed in an application for an interim relief, the
applicant must show that the harm to be suf fered if the order is not granted would be
irreparable, the balance of inconvenience must favour the applicant and there is no
alternative remedy, and the order granted should not result with separation of
powers harm.
35. A reasonable apprehension of irr eparable harm, which must be anticipated
and ongoing, implies that if the relief is not granted the effects of the harm would be
irreversible. The test for apprehension is an objective one requiring the applicant in
the founding affidavit to show that obje ctively adjudicated, its assertion of
apprehension is not just a fear, but well -grounded apprehension. The facts must be
set out in such a way that the Court can determine by itself that there is a reasonable
apprehension of injury. The question is would a reasonable man faced with the
similar facts might consider it to be a reasonable apprehension of injury.
36. The applicant submitted that there is an injury committed or reasonably
apprehended which commenced when the department unlawfully awarded the bi d to
the third respondent and perpetuated when the department concluded the contract
with the third respondent giving effect to the award. The department did not
specifically answer to this averment in its answering affidavit save to state that the
awarding of the tender to the third respondent was done in compliance with section
217 of the Constitution, Supply chain Management Policy, PFMA, National Treasury
Regulations and the Terms of Reference.
37. In Webster v Mitchell supra, it was sated that the bal ance of convenience
goes as far as to state that if there is a greater possible prejudice to the respondent
an interim interdict will be refused.
38. It was submitted on behalf of the department that the agreement was already
implemented, and th e interdict is likely to affect the young girls and may find
implemented, and th e interdict is likely to affect the young girls and may find
themselves having to be absent from school due to lack of sanitary pads and that the
order will amount to the separation of power harm. In essence the department's
submission is that if the order is granted the harm to be suffered by the girls in the
affected public and special schools would be irreparable.
39. The applicant submitted that given the fact that the delivery of the sanitary
pads will occur as and when required or on quarterly basis, an order interdicting
further performance under the contract will not bring the department's programme to
a halt. The submission is that the department can procure the sanitary pads by
means of obtaining lawful quotations or deviation basis.
40. In Maree Projects (pty) Ltd and another v City of Johannesburg
Metropolitan Municipality and Another (33992/2019) [2019] ZAGPJHC 540:[2020]
2 All SA157 (17 December 2019) paragrap79 Siwendu J said that "... the court
should be careful not to allow the organ of st ate to use the veil afforded to it by the
doctrine of separation of powers to implement a decision it is alleged to have been
taken unlawfully." The matter at hand has nothing to do with separation of powers,
the applicant's contention is that the bid was unlawfully awarded to the third
respondent which is distinguishable from the facts in OUTA 4 which the department is
basing its objection on.
41. The court has considered the impact the interim interdict would have on the
department, but I'm not convinced that the department would not be able consider
deviation given the fact that the production and delivery is done quarterly giving the
department enough time to consider alternative method of service delivery. The
applicant has put forward a compelling case for the relief sought and if the applicant
latter succeed on review and by then the substantial part of th e contract have been
performed then the applicant's victory will be academic. The harm to be suffered by
the applicant will then be irreparable. The department on the other hand has few
options at its disposal which includes reconsidering its decision to a ward the tender
to the third respondent.
42. I have carefully considered all submissions and legal authorities applicable to
the facts before me find that the under the circumstance of this case the balance of
the facts before me find that the under the circumstance of this case the balance of
convenience heavily favours the applicant. The interdict would not result with
4 National Treasury and Others v Opposition to Urban Tolling Alliance and Others (CCT 38/12) [2012]
ZACC 1; 2012(6) SA (CC) 2012 (11) BCLR 1148 (CC) (20 September 2012)
separation of powers harm and there is no alternative remedy available to the
applicant. The application has to succeed with costs.
ORDER.
43. I therefore make following order:
a. The application for interim interdict succeeds
b. Pending the finalisation of the final determination of the applicant's
review application pending before this Court under Case No
11183/2024 the respondents are hereby interdicted and restrained
from taking any further steps to perform their respective obligations in
terms of the written contract concluded between the Limpopo
Department of Education and the third respondent on 26 August 2024
to wards Bid No: LDE/B01/2024/25.
c. The first respondent is ord ered to pay the applicant costs as between
party and party scale B.
RS Mashifane J
Acting Judge of the High Court,
Limpopo Division, Polokwane
APPEARANCES:
For the Applicant: Adv Maphutha instructed by Moeti Kanyane Inc
For the first and Second respondents: Adv Tshitereke instructed by the Office of
State Attorney Polokwane
Judgment reserved: 26 March 2025
Judgment handed down: 23 JULY 2025