1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1) REPORTABLE : YES/NO
(2) OF INTERE ST TO THE JUDGES: YE S/NO
(3) REVISED.
DATE ............ SIGNATURE..
In the matter between:
MOTHOKWA TRADING ENTERPRICE
And
MEC FOR EDUCATION LIMPOPO PROVINCE
HEAD OF DEPARTMENT OF EDUCATION
LIMPOPO PROVINCE
MEC FOR FINANCE: LIMPOPO PROVINCE
CHAIRPERSON OF THE BID SPECIFICATION
COMMITTEE
CASE NO: 13927/2024
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
2
CHAIRPERSON OF THE BID ADJUDICATION
COMMITTEE
CHAIRPERSON OF THE BID EVALUATATION
COMMITTEE
REBONI PROPRIETARY LIMITED
SPLINTECH PROPRIETARY LIMITED
AMANTLE PROPRIETARY LIMITED
BANKOT DISTRIBUTORS PROPRIETARY LIMITED
INKABI HOLDINGS PROPRIETARY LIMITED
MPT MASHELE PROPRIETARY LIMITED
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth 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 31 JULY 2025.
JUDGMENT
Makoti AJ
Introduction
[1] Makgoka JA recently had occasion in Magudumana v Director of Public
Prosecutions, Free State and Others1 to borrow from an excerpt in Mohamed
v President of the Republic of South Africa (Society for the Abolition of the
Magudumana v Director of Public Prosecutions, Free State and Others (1196/2023) [2025] ZASCA 62
(16 May 2025) at para [115].
3
Death Penalty in South Africa and Another lntervening)2 (Mohamed) to
reflect on established jurisprudence to reach a conclusion that the state
cannot be allowed to act unlawfully. That much must be accepted as our
constitutional imperative.
[2] Mohammed itself had taken a leaf from the writing of an American justice,
Judge L D Brandeis, who held in a dissenting judgment in Olmstead et al v
Un ited States3 that:
"Decency, security and liberty alike demand that government officials
shall be subjected to the same rules of conduct that are commands to
the citizen. In a government of laws, existence of the government will
be imperiled if it fails to observe the laws scrupulously. Our
Government is the potent, the omnipresent teacher. For good of for ill,
it teaches the whole people by its example. . . . If the Government
becomes the lawbreaker, it breeds contempt for law; it invites every
man to become a law unto himself; it invites anarchy .... "
[3] Though the judgment in Olmstead was delivered many years ago, the
principle espoused by Judge Brandeis and the ripples of his erudite written
words have reached our shores as we can deduct from Mohamed and a
plethora of constitutional decisions. Indeed, our constitutional democracy
demands of government to act with fidelity to the people.4 With that said, I
will later in this judgment venture into the specifics of the case before me.
[4] Legality is at issue in this application, which is incident of the rule of law. The
case involves public procurement. The Applicant, Mothokwa Trading
Enterprise (Mothokwa), which was one of the bidders for a tender that was
advertised and subsequently cancelled by the Department of Education (the
2
3
4
Mohamed and Others v President of the Republic of South Africa (Society for the Abolition of the Death
Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC) at para 68.
O lmstead v. United States, 277 U.S. 438 (1928).
O lmstead v. United States, 277 U.S. 438 (1928).
Du Bois, F. Developing Good Faith: Equality, Autonomy and Fidelity to the Bargain, Constitutional
Court Review Vol. 12, 223-259, 2022.
4
Department) for the Limpopo Province, contends that the Department acted
unlawfully in cancelling the tender, subsequently embarking in a process of
deviation. The cancellation appears to have been formalized after the tender
validity period had lapsed.
The relief sought by the applicant
[5] The application is segregated into Part A and Part B. It came before me on
urgent basis. Given the time lapse since I heard arguments, I do not concern
myself with urgency in this judgment. I proceed to deal with its merits. In
terms of Part A the Applicant seeks urgent interdict and the specific prayer
reads in the following manner:
"2. That, pending the final determination of the applicant's review
application pending in this court under case number 13927/2024 the
Department and that seventh to the eleventh respondent be and are
hereby interdicted and restrained from taking any further steps to
perform their respective obligations in terms of the written contract
concluded by them pursuant to the decisions sought to be reviewed."
[6] Axiomatically, from the above extract, Mothokwa is seeking an interim
interdict against to stop the continuation with the works under the tender or
contract, as the case may be. Though the requirements of interim interdicts
are well-known, I will take an opportunity to deal with them below, but after
briefly discussing the facts.
The facts of the application
[7] On 20 and 23 October 2023 the Department published a tender on the
website and government bulletin. The tender was published under bid
numbers LDE/B05/2023/24 for the manufacturing and delivery of school
furniture for schools in the province.
5
[8] The tender was initially to lapse on 14 May 2024. Before it lapsed, on 13
May 2024 it was extended by the Department. The new date of lapsing was
then set as 14 July 2024. The tender was not awarded at close of business
on that date. Eventually, the Department cancelled the tender, according to it
on 02 July 2024 citing reasons that the tender specifications included a
specification that had been declared unconstitutional.
[9] The cancellation was formally published in the tender bulletin on 16 August
2024, which was published on 25 August 2024. I do not at this stage concern
myself with the reasons for the cancellation of the tender.
[1 O] In the answering affidavit the Department accepts that the extension of the
tender was not valid. That is not an issue that confronts me in this
application. It also alluded to the fact that there were problems with the
tender which were discovered during the evaluation processes. At paragraph
35 the answering affidavit states that:
"The Department had to urgently appoint a supplier for the
manufacturing and delivery of school furniture for primary and
secondary schools and teachers in the Limpopo Department of
Education for a period of three years."
[11] Presumably, because of the pressure under which the Department found
itself in at the time, it resorted to participate in a tender or contract from a
similar Department in a sister province, the Department of Education in the
North West Province (NW Education). Such pressure arose from the
purported need to repair a school that had a roof blown out by a storm. The
Applicant argued that the allegation was patently untrue. I only limit myself
by saying that the allegation was not substantiated. The tender from the
North West Department was published under numbers EDU01/23 NORTH
WEST .
6
[12] The Department addressed a letter to the North West Education on 04
September 2024 requesting permission to participate in its tender. This
procedure was done, according to the Department, in line with the provisions
of regulation 16A6.6 of the Treasury Regulations. In pith, the Department
deviated from the mandatory procurement procedures. Permission to
participate was granted on 17 October 2024.
[13] In the Department's view it was satisfied that the procurement processes that
were followed by the NW Education were lawful and it then wrote to the
service provider on 21 October 2024, also to request its consent. Consent
was granted on 14 November 2024 upon which the Department appointed it
to manufacture and supply it with school furniture. Yet, it only stated that it
had acquired a number of documents which inter a/ia included reports from
NW Education bid committee and the Service Level Agreement (SLA).
Whether the documents were considered and in what way is not reflected in
the answering affidavit.
[14] Then , because of that, the Department submitted in its papers that it had
fulfilled the requirements in terms of regulation 16A6 to participate in the
tender. There is no indication was provided as to whether by participating in
the tender from the NW Education was cost effective, which is one of the
requirements for participating in a tender from another organ of State.
Regulation 16A6.6 of the Treasury Regulations
[15] I thought it apposite to provide the details of the regulation verbatim, as
follows:
"The accounting officer or accounting authority may, on behalf the
department, constitutional institution or public entity, participate in
any contract arranged by means of a competitive bidding process by
7
any other organ of state, subject to the written approval of such organ
of state and the relevant contractors."
[16] I have had regard to tow decisions, Blue Nightingale Trading 397 (Pty) v
Amathole District Municipality and Excel/erate Services v Umgeni Water and
Others in which the courts emphasized that the constitutionality of the
exemption is a fact based enquiry. The contract that was concluded between
an organ of state and contractor must comply with all procurement
legislation. That holds true to the contract in this application, in which
participation was sought, by the Department. No just that, but the contract
ought to have existed when the decision to participate was taken.
[17] To the point made by the applicant, this is a special exemption to the
procurement processes which must still follow the rules. What stands out is
that the second organ of state, in this case the Department, must become a
party to the same contract. This entails that the terms and conditions of the
second contract must be the same as that of the first contract, by the NW
Education, including in respect of the price and its duration.
[18] The purpose of this form of procurement, is to avoid inter alia duplication of
costs by not initiating a new tender process, but without flouting the
constitutional imperatives of procurement processes. It stands to reason
therefore that if the terms and conditions are not the same , then the
constitutional imperatives will not have been met. Such an exemption will be
unlawful and liable to be set aside. These provisions are not discretionary
but peremptorily talk to compliance requirements as set out in the relevant
provisions of the law.
[19] Regulation 16A6.6 is always to be applied within the broad ambit of section
217(1) of the Constitution. It does not exist in a vacuum . In Minister of Social
Development v Phoenix Cash & Carry Pmb CC , the court conducted a brief
8
survey of the circumstances which would offend against section 217(1) and
arrived at the following conclusion:
"a process which lays undue emphasis on form at the expense of
substance facilitates corrupt practice by providing an excuse for
avoiding the consideration of substance; it is inimical to fairness.
competitiveness and cost effectiveness." [Emphasis added]
[20] In this case Mothokwa relied on Al/pay Consolidate Investment Holdings
(Pty) Ltd & Other Chief Executive Officer of the South African Social Security
Agency and Other (Corruption Watch and Centre for Child Law as Amici
Curiae)5 it was affirmed that the entire procurement framework constitutes a
full set of which are legally binding on the organs of state.
[21] The Department referred the court to form SBD7 .2 to evidence the fact that
the service provider has consented to its participation in the tender. The
service provider in question is Reboni Furniture Factory (Pty) Ltd, the
seventh Respondent. The SLA with the NW Education was signed on 01
October 2024. This is a point that the Applicant has raised, contending that
participation cannot be in a tender but should be in a contract, with no
straight answer from the Department.
[22] What kickstarted the participation in the NW education tender or contract
was an internal memorandum that was dated 27 August 2024. The
memorandum reached the Head of Department who approved it on 03
September 2024. Paragraph 2 of the memorandum reads thus:
5
"The LDoE school furniture tender expired on 03 November 2023, and
it was further extended to 29 February 2024. The replacement contract
was advertised in September 2023. The bidding process is cancelled.
Currently there is no contract in place to purchase school furniture
for Grade 1 to 12. The school furniture budget of 2024/25 financial
CCT 48 (2014] ZAC C .
9
year is RSOm. The funding is for two programmes which are supplying
Grade "R" furniture and manufacturing Grade 1 to 12 school
furniture."
(23] Then , at paragraph 4 the memorandum provided an explanation for seeking
to participate in a contract that was procure elsewhere. It reads in this
fashion:
"The department is on the verge of losing the school furniture budget
due to non-utilization if not underutilization of school furniture budget
which is RSOm in this current financial year."
(24] The reason provided here is incongruent to the case made by the
Department in the answering affidavit. In the affidavit a case is made that the
participation was necessitated by an emergency which the Department found
itself facing. The source document says nothing about an emergency. What
the memorandum motivated for was that the Department should avoid losing
its budget of R50m .
(25] A separate memorandum was submitted to the Head of Department by the
Department SCM . In this memorandum the HOD is requested to consider
and approve the earlier one. The memorandum was also signed for approval
by the HOD on 03 September 2024. At no point did the two memoranda deal
with the alleged situation of emergency. On these dates there was no SLA
between the NW Education and Reboni, not even when the Procurement
Director of the Department approved an internal memorandum on 29 August
2024. I am aware that the SLA backdated the effective date of the contract to
01 June 2024.
(26] The applicant is aggrieved by the cancellation of the tender after it had
expired. It is common cause that the tender had an initial expiry date of 14
May 2024. On 13 May 2024 the Department extended the validity period by
10
a further three months. The new expiry date became 14 July 2024. It is the
applicant's case that the tender was not validly extended as the Department
had not obtained concurrence of all bidders.
[27] An answer that was offered for the allegation that the Department had failed
to secure concurrence of the bidders before it extended the tender was that
only a few bidders had responded to its notice encompassing the request. It
is so that the request for bidders' concurrence was dated 13 May 2024,
though it is not clear that it had reached the attention of all the bidders. I
accept that the decision to extend the tender at that stage was not well
conceived. Self-evidently, which is a matter of common cause, the tender
lapsed even after it was so extended.
[28] In of Telkom SA Limited v Merid Trading (Pty) Ltcfo where the following was
said:
"As soon as the validity period of the proposals had expired without the
applicant awarding a tender, the tender process was complete - albeit
unsuccessfully - and the applicant was no longer free to negotiate with
the respondents as if they were simply attempting to enter into a
contract. The process was no longer transparent, equitable or
competitive. All the tenderers were entitled to expect the applicant to
apply its own procedure and either award or not award a tender within
the validity period of the proposals. If it failed to award a tender within
the validity period of the proposals it received, it had to offer all
interested parties a further opportunity to tender. Negotiations with
some tenderers to extend the period of validity lacked transparency and
was not equitable or competitive. In my view the first and fifth
respondent's reliance only on rules of contract is misplaced." [Emphasis
added]
[30] This was further expounded in of City of Ekurhuleni Metropolitan
6 2011 JRD 0004 (GN P).
11
Municipality v Takubiza Trading & Projects CC and Others7 and where the
court said the following:
"the validity period is indeed one of the fundamental 'rules of the
game', being the period within which the process should be finalised.
To extend the tender validity period, the consent of all the participants
to the tender process is required. Unless there is a timeous request
and favourable response from all the tenderers prior to the expiry of
the tender, the tender comes to an end." [Emphasis added]
[31] It is glaring that there was no timeous request for bidders to concur to the
extension. I am not called to determine the legality or validity of the extension
and I do not attempt to do so.
[32] There is an additional point to observe in this application. That is that the
internal memoranda within the Department labelled the contract or tender
from the NW Education as transversal. The applicant contended that this
was incorrect. I agree. The tender and contract from the NW Education were
not transversal.
[33] Nothing turns on the labelling of the nature of the contract. But there might
be a greater point which requires scrutiny. The question concerns the issue
of how did the Department identify all the five service providers to contract
with. I am aware about one of the service providers whose SLA with the NW
Education I have been referred to. As to how did the others parties come into
play is a mystery. The Department has not said much as to how it contracted
with the other service provider, numbering in full, five (5) when counted
together with Reboni. This speaks to the extension of the scope of the
contract, the legality of which question I do not decide. However, it has
implications for the relief in this Part A application. Should they all be allowed
to continue rendering services? I hold not.
7 2023 (1} SA 44 (SCA).
12
Whether the applicant has satisfied the requirements for interim interdicts
[34] The requirements are well-known. An applicant requiring an interim interdict
must show that it has prima facie right, which may be open to doubt;
reasonable apprehension of irreparable harm; that balance of convenience
favours the granting of the order; and that it has no suitable alternative
remedy. An interdict is used to either prohibit or to compel the doing of
something.8 The SCA held in Mem ory Institute SA CC tla SA Memory
Institute v Hansen and Others9 that:
"[l]nterim orders and rule nisi are not to be had simply for the asking.
Courts should satisfy themselves that a proper case has been made
out, more so if the subject is technical. The fact that a respondent
may approach the Court for reconsideration of the Rule ... and that it
may be set aside on the return day should serve neither as a sop nor
a soporific."
[35] Regarding prima facie right it has been established in this application that the
Applicant was one of the bidders that had tendered as service provider for
the manufacturing and supply of school furniture. The relevant allegation was
not denied. Thus, it is my finding that the Applicant has managed to prove
the existence of a prima facie right to just administrative action by an organ
of the state. More so where a tender that it had hopes of fairly competing in
was cancelled.
[36] The next question relates to harm reasonably apprehended. The test for
harm stands on both substantive and objective considerations. In light of
authorities on this point, the harm that is apprehended on reasonable
grounds must be irreparable. The concept of irreparable harm was lucidly
8
9
Un ited Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2023 (1)
SA 353 (CC) at para 47.
2004 SA (2) 630 (SCA) at 635G-H .
13
explained by Mogoeng CJ in City of Tshwane Metropolitan Mun icipality v
Afriform and An other10 (Afriforum) in the following manner:
"[59] Irreparable implies that the effects or consequences cannot be
reversed or undone. Irreparable therefore highlights the irreversibility
or permanency of the injury or harm. That would mean that a
favourable outcome by the court reviewing allegedly objectionable
conduct cannot make an order that would effectively undo the harm
that would ensue should the interim order not be granted."
[37] It is so that the Department appointed the service providers for a period of
three years. The appointment, I have been told, was done because of an
emergency that had arisen. If I were to accept the explanation that the
Department was exposed to an emergency, which the pleaded facts have
not revealed, it is curious whether the emergency will sustain for the entire
period of three years.
[38] Meanwhile, the Applicant as a bidder which had hoped that it would be fairly
considered for the tender, does not have another opportunity, for that period
of three years, to compete to become a manufacturer and supplier of
furniture for the Department. On that basis I am satisfied that the harm
apprehended is not reversible.
[39] Making reference to National Treasury and Others v Oppo sition to Urban
Tolling Alliance and Others, 11 the Department contends that the Applicant
will not suffer irreparable harm. The stanzas referenced do not abet the case
sought to be made by the Department. Here the Applicant is facing not just
an inconvenience, but has lost an opportunity to tender as a service and
goods supplier to the Department. And that chance cannot be reversed
10
11
C ity of Tshwane Metropolitan Municipality v Afriforum and Another (157/15) [2016] ZACC 19; 2016 (9)
BCLR 1133 (CC); 2016 (6) SA 279 (CC) (21 July 2016).
2012 (6) SA 223 (CC) at paras 53 and 67.
14
within the period of three years. Harm is palpable. In any case the
Department conceded to the fact that the harms to be suffered by the
Applicant is financial. Financial harm is still harm.
[40] I turn to the question of balance of convenience. There are two
considerations. The first is whether the court can sit idle or countenance an
unlawful government procurement continuing. The second is whether the
Department will be exposed to undue hardship if the temporary injunction
was granted. With regard to the first the answer is simply that the court has a
duty to ensure that the doctrine of legality is upheld,12 including by, in my
view, stopping a process that appear to be perpetuating a breach of the
doctrine.
[42] The Department has not covered itself in glory when trying to explain why it
took the decision. What made the decision pressing was instead merely
thrown in there, opaquely so. Although it suggested that there was an
emergency, the point that I referenced above in this judgement, it has not
taken the opportunity to show the court what that situation of emergency was
that confronted it.
[43] Worse, when the Department requested to participate in the contract in
terms of regulation 16A.6.6 the contract was not yet in existence.
[44] A claim for damages is not available for the applicant in this matter. Sight
should also not be lost to the meaning of harm according to Afriforum in
which the following was said:
12 Lester v N dlambe M unicipality and An other 2015 (6) SA 283 (SC A) at para [24).
15
"[56] Within the context of a restraining order, harm connotes a common
sensical, discernible or intelligible disadvantage or peril that is
capable of legal protection. It is the tangible or intangible effect of
deprivation or adverse action taken against someone. And that
disadvantage is capable of being objectively and universally
appreciated as a loss worthy of some legal protection, however much
others might doubt its existence, relevance or significance.
Ordinarily, the harm sought to be prevented through interim relief
must be connected to the grounds in the main application." (Emphasis
added)
[45] I am satisfied with the case made by the Applicant on this point. The loss of
an opportunity to tender, following a decision that is not quite clear, is
palpable.
[46] The requirement of balance of convenience requires the balancing of the
interests of the affected parties, to determine the harm that the Applicant will
suffer if interim relief is not granted, against the harm likely to be suffered by
the Respondent if the interim order is granted. About this the Applicant has
asserted that given the three year lifespan of the tender and the normal time
it takes for a review application to be finally prosecuted, the relief it seeks in
the review application will be rendered moot when the case is finally
determined. It will be left with no remedy as a result.
[4 7] The last ground that the Applicant has to satisfy is that it does not have a
suitable alternative remedy. It contends so because, on its papers, once
implemented the Court dealing with the review application may be
persuaded to ratify the tender. This is short of what the requirement
demands.
[48] The public interest lies in the protection of the scarce public resources, and
this is undermined whenever state tenders are awarded unlawfully, so said
16
the Court in Maree Projects (Pty) Ltd and Another v City of Johannesburg
Metropolitan Municipality and Another.13 This tender is for a period of three
years. Strangely, the Department says that the Applicant can apply for the
tender at a later date. A suitable alternative remedy is one which can allow
the Applicant an opportunity to participate or compete fairly for government
work.
[49] In its written argument the Department tersely contended that:
"If the applicant's intimations of impropriety on the part of the
respondents in the awarding of the tender, on review, are proven to
substantiate fraud or corruption and it is proven that the applicant
should have been awarded the tender, it would be entitled to claim for
damages."
[50] I do not see how the Applicant has a claim for damages in the circumstances
of this case. Also, I am alive to the fact that an entitlement to review an
impugned decision does not on its own require for protection pendente life.
While that is so, it is apt to revisit what the SCA stated in Steenkamp NO v
Provicnial Tender Board of the Eastern Cape 14 where it was held as follows:
13
14
"(43] The 'alternative remedy' argument has some validity but the point
must not be stretched to breaking point. Availability of review to an
unsuccessful tenderer can hardly be an argument for conferring a
damages claim on the successful tenderer. All that can happen on
review is that the award may be set aside. The successful litigant
does not acquire the benefits (or burdens) of the successful tenderer.
Recently a disappointed tenderer, who was able to show that the
award was seriously tainted, was vindicated on review, though only
Maree Projects (Pty) Ltd and Another v City of Johannesburg Metropolitan Municipality and Another:
Unreported Case No: 33992/2019, Gauteng Local Division, Johannesburg. at par 82.
Steenkamp v Provincial Tender Board of the Eastern Cape (528/2004) [2005] ZASCA 120; [2006] 1 All
SA 478 (SCA) (30 November 2005).
17
by an award of costs since setting aside the award was impractical as
the contract work had already been performed. In other words, the
suggestion that review is an adequate alternative remedy is a
misconception." (Emphasis added)
[51] This is one of those instances where the Court has to intervene and grant
interim relief.
Consideration of costs
[52] Costs are in the discretion of the Court, which discretion is to be exercised
judiciously.15 The default position adopted by our Court is that costs follow
the course as they are awarded to a successful party.
[53] The purpose of an award of costs to a successful litigant is to indemnify him
for the expense to which he has been put through having been unjustly
compelled to initiate or defend litigation. This is a general principle. Long ago
the Court dealt with the question of costs in Kruger Bras & Wa sserman v
Ru skin16 and held that:
"The rule of our law is that all costs -unless expressly otherwise
enacted - are in the discretion of the Judge. His discretion must be
judicially exercised but it cannot be challenged, taken alone and apart
from the main order without his permission".
[54] The Applicant has succeeded and I do not see any reason why it should not
be awarded costs.
Order
15
16
Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and another
2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 88.
1918 AD 63 at 69.
18
[55] I make the following order:
[i] Pending final determination of the review application in Part B of
this application the Department of Education, Limpopo Province,
together with the Seventh to the Eleventh Respondents are
interdicted and restrained from continuing with the services in
terms of the contract concluded by them in terms of Regulation
16A6.6 of the National Treasury Regulations.
[ii] The Department of Education, Limpopo Province shall bear the
costs of this application, which costs shall be on party and party
scale A.
M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION
APPEARANCES:
FOR APPLICANT
FOR FIRST RESPONDENT
Date of hearing:
Date delivered:
ADV M R MAPHUTHA
ADVT MOYO
Kovani Attorneys
Polokwane
ADV N GAISA
Office of the State Attorneys
Polokwane
11 February 2025
31 July 2025