IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 13787/2024
In the matter between:
RAUBEX BUILDING (PTY) LTD APPLICANT
and
BITOU MUNICIPALITY FIRST RESPONDENT
CARNIVORE CAPITAL (PTY) LTD SECOND RESPONDENT
Neutral citation:
Coram: COOKE AJ
Heard: 5 August 2025
Delivered: 28 August 2025
Summary: Status of judgment in interim application – duty to exhaust internal
remedies – test for non-responsiveness
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ORDER
[1] Part B of the application is dismissed.
[2] The applicant shall pay the costs of the second respondent, including the costs of
two counsel with senior counsel on scale C, and junior counsel on scale B.
JUDGMENT
Cooke AJ:
[1] Alongside the N2 highway outside Plettenberg Bay, opposite the Formosa Bay
Resort, lies an undeveloped parcel of land. Since just after the turn of the century
this centrally located plot has been earmarked for a housing development. In
October 2023, the first respondent (‘the Municipality’) called for proposals for a high -
density residential development . The vision was to build affordable contemporary
housing which would be offered to middle-income members of the community so
they could , with the assistance of subsidies from the Department of Human
Settlements, become homeowners for the first time. The development would include
amenities typically found in modern housing estates , such as private open spaces,
communal facilities, security and the like.
[2] The applicant (‘Raubex’) and the second respondent (‘Carnivore’) both submitted
proposals. In May 2024, the tender was awarded to Carnivore. Dissatisfied with this
decision, Raubex brought an application for the review of the decision . As is often
the case in such application s, the relief comprised two parts - Part A and Part B.
[3] In Part A of the application, Raubex sought urgently to interdict the implementation
of the tender pending the determination of Part B. In Part B, Raubex seeks the
following substantive relief:
a. The review and setting aside of the Municipality’s decision t o eliminate
Raubex from the tender process.
b. The review and setting aside of the Municipality’s decision to award the
contract to Carnivore.
c. Directing that the contract be awarded to Raubex, alternatively remitted to
the bid adjudication committee (‘BAC’) for reconsideration.
[4] Both parts of the application were opposed by Carnivore. For its part, the
Municipality abided by the decision of the court and over time delivered two
explanatory affidavits . At the hearing before me, the Municipality was represented
by counsel, although she recorded that she was only on a watching brief , and she
made no submissions .
[5] At the first hearing of Part A , the application was struck off the rol l by Francis J for
lack of urgency. Part A was the n re -enrolled and heard by Bhoopchand AJ on 5
November 2024. A fortnight later, on 19 November 2024, the learned judge handed
down judgment1 in which the application for an interim interdict was dismissed with
costs, including the costs of two counsel (‘the interim judgment’) . I highlight certain
aspects of this judgment.
[6] First, the judge made it clear that he was only dealing with the application for an
interim interdict . He declined to read two bundles of documents obtained through
the rule 53 procedure, noting that those documents are best reserved for the review
1 Reported as Raubex Building (Pty) Ltd v Bitou Municipality and Another [2025] 1 All SA 472 (WCC).
court.2 Later in the judgment he recorded that he was cognisant of the relief sought
in the application and that a review remains in the offing. 3
[7] As regards Raubex’s obligation to exhau st internal remedies, he held that the
internal appeal had been submitted on time, and this had been confirmed by an
email from a representative of the Municipality which stated that the closing date for
appeals was 9 May 2024.4
[8] On the substance of the application, he found that Raubex had failed to satisfy the
requirements of an interim interdict, more particularly: (a) its prospects of success in
the review application were poor or negligible because it had failed to comply with
the design limitations (its proposal of a four-storey building with a height above
10.67m contravened the applicable by -law);5 (b) the balance of convenience was
firmly against Raubex ;6 (c) Raubex had failed to ident ify any current o r imminent
harm;7 and (d) Raubex provided credible alternative relief when it adverted to its
intention to expedite the review process.8
[9] After receiving th e interim judgment, the attorneys for Carnivore addressed
Raubex’s attorneys on several occasions contending that - having regard to the
findings on the merits of the review in the interim judgment - Raubex should
withdraw Part B of the application. It appears from recent correspondence that
Raubex was amenable to withdrawing the application, subject to there being no cost
order against it. This proved to be a sticking point and in the result the parties
proceeded with Part B of the application.
[10] On 30 July 2025, shortly before the hearing, Raubex delivered a further affidavit in
which it sought to set out ‘new material information’ and asked that the matter be
2 Ibid para 25.
3 Ibid para 42.
4 Ibid paras 16 and 24.
5 Ibid para 42.
6 Ibid para 43.
7 Ibid para 42.
8 Ibid para 44.
referred to oral evidence. The main gripe in this affidavit concerned Carnivore
having been permitted to amend its site development plan. Carnivore delivered a
response on 4 August 2025 in which it objected to the delivery of the further
affidavit. Carnivore pointed out that Raubex’s further affidavit had not been
accompanied by an applicatio n in terms of uniform rule 6(5)(e). Carnivore also
replied to the contents of the further affidavit and made detailed submissions
regarding costs.
[11] At the hearing counsel for Carnivore submitted that the further affidavit fell to be
regarded as pro non scripto (as if it had not been written) . Reliance was placed on
judgments such as Sewpersadh9 and Hano Trading.10 Counsel for Raubex, on the
other hand, called in aid the recent judgment of Mabindla -Boqwana JA in De
Kock.11
[12] In my view , Raubex failed to provide a proper and satisfactory explanation for not
having placed the new information before the court at an earlier stage. In particular,
Raubex would have been aware that Carnivore’s bid did not comply with the
building line when it first received the bid evaluation committee report (‘the BEC
report’). It would have seen then that Carnivore had to apply for a relaxation of the
building line or amen d its proposed layout. If there was anything in this new point it
could have been raised in the supplementary founding affidavit. I am also not
persuaded that the new information is relevant or important. Having said that, the
prejudice to Carnivore is largely ameliorated by it having filed a full reply . The
further affidavit also purports to support the last-minute oral evidence app lication
(discussed below) . Having regard to all the circumstances, I am willing to admit the
affidavit, and Carnivore’s response, but only for the limited purpose of considering
the application to refer the matter to oral evidence.
The status of the interim judgment
the application to refer the matter to oral evidence.
The status of the interim judgment
9 Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C) para 13.
10 Hano Trading CC v JR 209 Investments (Pty) Ltd and Another 2013 (1) SA 161 (SCA) paras 7-14.
11 De Kock v Du Plessis and Others 2024 JDR 3115 (SCA) paras 24ff.
[13] Before turning to the issues which arise in Part B, it is apposite to make a few
observations regarding the status of the interim judgment . I do so in light of the
insistence on the part of Carnivore’s attorneys that Raubex withdraw the application
because of the findings in the interim judgment , as well as an initial submission by
Raubex’s counsel at the hearing to the effect that I am bound by the interim
judgment.
[14] The courts have approached judgments in interim proceedings in different ways
although the effect of these decisions , for present purposes, is the same.
[15] In National Gambling Board the Constitutional Court held:12
‘an interim interdict is by definition “a court order preserving or restoring the
status quo pending the final determination of the rights of the parties. It does not
involve a final determination of these rights and does not affect their final
determination.” The dispute in an appli cation for an interim interdict is therefore
not the same as that in the main application to which the interim interdict relates.’
[16] Consistent with the notion that the dispute is different, the courts have held that the
principles of res judicata do not ap ply to the decision of the court which hears the
application for interim relief. 13 It has also been held that when courts in interim
applications make findings which purport to determine the issues in the main
application, such pronouncements should be regarded as obiter.14
12 National Gambling Board v Premier, Kwa-Zulu Natal and Others 2002 (2) SA 715 (CC) para 49.
13 Ward v Cape Peninsula Ice Skating Club 1998 (2) SA 487 (C) at 502C-E; Zulu v Minister of Defence
and Others 2005 (6) SA 446 (T) (‘ Zulu’) para 42.
14 Buthelezi and Others v Ditsobotla Local Municipality and Others [2021] ZANWHC 37 (9 March 2021)
para 17.
[17] In Tony Rahme15 the court held that interlocutory decisions are not binding at later
stages of the proceedings and should yield easily to persuasive arguments
indicating error or oversight. A different perspective was expressed in Zulu16 where
the court held that it is no t an issue of the hierarchy of the courts and which of the
two courts has the power to bind the other. Rather it is a matter of the two courts
fulfilling different functions in the exercise of their judicial powers. The court
considering final relief is seized with the full matter and is called upon to decide the
issue finally. On the other hand, the court that considers interim relief only must
decide the issues on a preliminary basis and having regard to the existence or non -
existence of a prima facie right.
[18] Having regard to the approach which was adopted in the interim judgment, in which
it was specifically recorded that the court was only determining the interim relief ,
and having regard also to the authorities set out above, in my view I am not
constrained to follow the approach which was adopted in the interim judgment in so
far as the same issues arise in Part B of the application.
[19] I now turn to assess Part B of the application . The interim judgment has been
reported, and it is therefore not necessary to set out the background to this matter in
detail. The first issue which must be determined is whether Raubex complied with
the obligation to exhaust its internal remed y. If it fail ed to do so , and absent an
exemption, I am precluded from reviewing the challenged administrative action .
Exhaustion of internal remedy
[20] In terms of s 7(2) of the Promotion of Administrative Justice Act 3 of 2000 ( ‘PAJA’) it
is compulsory for the aggrieve d party in all cases to exhaust the relevant internal
remedies unless exempted from doing so by way of a successful application under
15 Tony Rahme Marketing Agencies SA (Pty) Ltd and Another v Greater Johannesburg Transitional
15 Tony Rahme Marketing Agencies SA (Pty) Ltd and Another v Greater Johannesburg Transitional
Metropolitan Council 1997 (4) SA 213 (W) at 216C.
16 Para 42.
s 7(2)(c) of PAJA.17 In Dengetenge the Constitutional Court explained that a review
application that is launched before exhausting internal remedies is taken to be
premature and the court to which it is brought is precluded from reviewing the
challenged administrative action until the domestic remedies are exhausted or
unless an e xemption is granted. This means that the duty to exhaust internal
remedies defers the exercise of the court’s review jurisdiction for as long as the duty
is not discharged.18
[21] The decision taken by the Municipality to award the tender to Carnivore was
conveyed to Raubex on 17 April 2024. The letter drew attention to a provision in the
Bitou Municipality SCM Policy (‘the SCM Policy’) which affords affected bidders the
right to appeal against the decision of the BAC or Accounting Officer by giving
written notice of their appeal and the reasons for it to the municipal manager within
21 days of the receiving date of the letter. The SCM Policy was not attached to any
of the affidavits, no r was it included in the record. The SCM Policy would , however,
appear to mirror s 62(1) of the Local Government: Municipal Systems Act 32 of
2000 (‘the Systems Act’). This section provides:
‘A person whose rights are affected by a decision taken by a poli tical structure,
political office bearer, councillor or staff member of a municipality in terms of a
power or duty delegated or sub -delegated by a delegating authority to the political
structure, political office bearer, councillor or staff member, may app eal against that
decision by giving written notice of the appeal and reasons to the municipal
manager within 21 days of the date of the notification of the decision.’
[22] Raubex lodged its appeal on 9 May 2024 . The days contemplated by the Systems
Act are calendar days. 19 The same must apply to the SCM Policy. Consequently,
Carnivore argued that 21 calendar days, counted from 17 April 2024, is 8 May 2024.
Carnivore argued that 21 calendar days, counted from 17 April 2024, is 8 May 2024.
17 Nichol and Another v Registrar of Pension Funds and Others 2008 (1) SA 383 (SCA) at para 15.
18 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd 2014 (5) SA
138 (CC) para 116.
19 Amandla GCF Construction CC and Another v Municipal Manager, Saldanha Bay Municipality and
Others 2018 (6) SA 63 (WCC) para 7.
Therefore, so the argument ran , when Raubex lodged its appeal on 9 May 2024 it
was out of time, albeit by just one day. The lapsing of the time for exercising the
internal remedy would mean that the duty to exhaust internal remedies had not
been satisfied.20
[23] Although Raubex adopted various positions on this aspect through the course of the
litigation, finally, in replying argument at the hearing , Raubex’s counsel submitted
that the 21-day period did not commence before 23 April 2024, being the date when
the Municipality provided reason s for its decision. In my view , this belated
submission was well-founded.
[24] In Evaluations Enhanced Property Appraisals (Pty) Ltd v Buffalo Metropolitan
Municipality,21 Dukada J held that although s 62(1) of the Systems Act does not
specifically state that the notification of the decision must be accompanied by the
reasons for that decision, in our present Constitutional democracy, the maker of that
decision is obliged to give reasons for it. 22 The learned judge pointed out that t he
reasons for the deci sion were necessary to enable an aggrieved party to formulate
properly the notice of appeal , which includes the provision of reasons, as required
by s 62(1) of the Systems Act.23 This judgment relied upon the approach adopted by
the Constitutional Court in Koyabe, where the court found that reasons were
important for the applicants ’ review of a decision finding them to be illegal
foreigners, and they were entitled to reasons.24
[25] In the Gauteng division, Keightley J (as she then was) adopted a similar approach
in the matter of FM v Minister of Home Affairs.25 This case concerned a decision by
a Standing Committee on Refugee Affairs ( ‘SCRA’). It was contended that the
20 Koyabe and Others v Minister for Home Affairs and Others (Lawyers for Human Rights as amicus
curiae) 2010 (4) SA 327 (CC) (‘ Koyabe’) para 47.
21 2013 JDR 1690 (ECG).
22 Ibid para 18.
23 Ibid para 19.
24 Koyabe paras 61-2.
21 2013 JDR 1690 (ECG).
22 Ibid para 18.
23 Ibid para 19.
24 Koyabe paras 61-2.
25 2014 JDR 1732 (GP) at paras 111 -123. See also the discussion in Administrative Law in South Africa
at 654-5.
SCRA is under no duty in terms of the Refugees Act 130 of 1998 to provide reasons
for its decision and if the applicant wished to be provided with reasons, her remedy
lay in section 5(1) of PAJA, ie she should have requested reasons. The learned
judge pointed out that in light of the particular facts that existed (the applicant was
placed under notice to leave the country within 30 days), the resort to section 5(1) of
PAJA by the applicant would have served no practical purpose.
[26] The judgment of Dukada J was overturned by a full court which reasoned, with
reference to the principle of subsidiarity and the request -driven regime of s 5 of
PAJA, that there was no automatic right to reasons, and the process prescribed by
s 5 should be followed. 26
[27] The finding of t he full court has been criticised by Steytler and de Visser. 27
According to these authors the full court’s interpretation produces an unsatisfactory
situation for those aggrieved parties who rely on the reasons given to decide
whether to appeal . These authors note that the PAJA timeli nes extend far beyond
the appeal deadline and by delaying the furnishing of reasons, a municipality may
orchestrate the lapsing of the 21 -day period. The authors submit that the 21 -day
period for lodging an appeal commences on the day that the aggrieved party
receives the reasons for the decision.
[28] Although the full court did not agree that the decision -maker was obliged by s 62(1)
to provide reasons with the notification , it did make the following important find ing:
‘It follows that the applicant had 90 days from 21 August 2012 to request reasons
from the [municipality ] (section 5(1) of PAJA). The [municipality ] had 90 days to give
reasons failing which, the decision would have been deemed to be unlawful and
liable to be set aside ( section 5(2) and (3) of PAJA). If the [municipality ] gave
reasons, the applicant had 21 days to give notice of its appeal and the reasons
reasons, the applicant had 21 days to give notice of its appeal and the reasons
26 Evaluations Enhanced Property Appraisals (Pty) Ltd v Buffalo City Metropolitan Municipality and others
[2014] 3 All SA 560 (ECG) .
27 N Steytler and J de Visser Local Government Law of South Africa Issue 17 (May 2025) §2.3.5.1.
therefor (section 62(1) of the Systems Act), and the appeal would then have been
dealt with a s provided in section 62. This is the procedure which should and could
have been followed by the applicant.’28
As I read th e judgment, if a request for reasons is made, then the 21 -day period
only commences after the reasons are given. The differences of approach
described above therefore only become relevant if the aggrieved party does not
request reasons.
[29] In this matter reasons were requested and given. It is therefore not necessary to
decide whether the approach followed by Dukada J and Keightley J is correct, or
whether the approach adopted by the full bench is to be preferred . Even on the
latter approach, if rea sons are requested and given, the 21 -day period does not
start until the latter date.
[30] It follows, to my mind, that the 21 -day period did not commence until the
Municipality ha d provided the reasons for the decision. This only occurred on 23
April 2024 at the earliest . It follows that the appeal was lodged within the 21 -day
period.
[31] Carnivore has a further argument. It submits that if the appeal was lodged in time,
then the appeal was never decided and Raubex should have brought an application
to compel the Municipal Manager to decide the appeal. According to Carnivore,
unless and until the appeal has been decided, Raubex has not exhausted its
internal remedy. In my view, this argument is unrealistic. It appeared from the Acting
Municipal Manager’s letter of 13 May 2024 that he did not consider that there were
grounds for appeal. In h is view, the decision was ‘in terms of the bid rules and
applicable legislation’. The final sentence in this letter thanked Raubex for its time
and interest in submitting an offer. As fa r as he was concerned, the matter was
28 Para 45.
closed. On the same day the Acting Municipal Manager signed a memorandum of
understanding and a sale agreement with Carnivore.
[32] Although Raubex’s attorneys sent a letter on 16 May 2024 requesting confirmation
that Raubex’s appeal would be noted, and the implementation of the award stayed,
on 3 June 2024 Mr Damonds informed Raubex’s attorneys that ‘the appeal period
has lapsed and no further matters falling outside the period will be considered’.
Raubex’s attorneys sent a response to Mr Damonds on the following day, 4 June
2024, raising various issues. Later that day, Mr Damonds sent an email to Raubex’s
attorneys, recording that the personal assistan t to the Municipal Manager would
provide their letter to the Municipal Manager. Notwithstanding this undertaking, n o
further correspondence was received from the Municipality , and the application was
then launched on 13 June 2024.
[33] In my view , the correspondence from the Municipality shows that either it had
already decided the appeal, or it would not be doing so. Either wa y the door had
been closed on Raubex, and there was no longer any ‘available, effective and
adequate’29 remedy which Raubex could pursue. Raubex was therefore entitled to
turn to the courts for relief. Whether its review is well -founded is considered in the
next section.
The lawfulness of the decision
[34] In its founding affidavit, Raubex identified two grounds of complaint. First, Raubex
should have been awarded 90 points for its financial offer, rather than 83.55 points.
Second, in so far as it was declared to be non -responsive, Raubex alleged that its
tender conf ormed to all the terms, c onditions and specifications of the tender
documents, without material deviation or qualification. As to the non -compliance
with the height restrictions, Raubex alleged that the Municipality knew that (a)
Raubex was willing and able to build the housing un its on a three-level construction
29 Koyabe paras 41-45.
model and (b) this adjustment would not affect the bid price as Raubex had bid on a
per unit basis.
[35] Based on these complaints, Raubex contends that the impugned decisions were
unlawful in terms of s 6 of PAJA , including s 6(2)(e)(iii) ( the action was taken
because irrelevant considerations were taken into account , or relevant
considerations were not considered) and s 6(2)(f) (the action was irrational etc).
[36] In the supplem entary founding affidavit , Raubex developed its second complaint. It
alleged that the Municipality had regarded Raubex’s bid as responsive and scored
its tender on that basis. Raubex pointed out that tenderers that submitted a site
development plan for a three -storey building were awarded a score of 0.25, while
Raubex was scored 0. According to Raubex, the fact that it was specifically scored
in relation to this functionality dismantles any notion that its bid was treated as non -
responsive on the basis that the building plans submitted exceeded three-storeys.
[37] Furthermore, Raubex alleged, with reference to clause F.3.8.2 of the CIDB
Standard Conditions of Tender, that its tender had none of the attributes that would
qualify as a material deviation. In support of this argument, Raubex put up an
affidavit from a quantity surveyor who contended , amongst other things, that altering
the design from a four -storey building to a three-storey building will have no impact
on the overall costing per uni t.
[38] Raubex’s first complaint may be disposed of bri efly. Although certain documents
indicated that it had initially only been scored 83.55 points for its financial offer, the
final iteration of the BEC report showed that it had been scored 90 points for its
financial offer. It appears from this report that Raubex was considered
‘unacceptable’ 30 because it submitted a plan for four floors and thus exceeded the
Bitou Zoning Scheme By-law (‘the By-law’).
[39] The BEC report was in due course adopted by the BAC, whe reafter the final
decision was made by the Municipal Manager. The finding by the BEC that
Raubex’s tender was ‘unacceptable’ was followed without demur by the BAC and
the Municipal Manager. Ultimately, the decision went against Raubex because it
had not complied with the height restriction, not because of its financial offer.
[40] As regards the second complaint, the BEC report contained several anomalies:
a. It states that there were four ‘responsive’ tenders, one of these four being
Raubex. It listed tenderers which were found to be ‘non -responsive for
evaluation and therefore eliminated’. This list did not include Raubex. The
report also had a section headed ‘Reference/Risk checks on responsive
tenders’, under which the bidders who had not complied wi th the height
restrictions were listed (including Raubex). A further section was headed
‘Risk checks on responsive tenders’ . Once again, Raubex was described
under this heading. All of this indicates that the BEC considered Raubex
to be a ‘responsive’ tender. The Municipality did not explain why Raubex’s
tender was simultaneously described as ‘responsive’ and ‘unacceptable’.
b. The BEC report also recorded that ‘quality’ shall be scored by evaluating,
amongst other things, ‘Compliance with Land Development Parameters’ –
for which 1.25 points were allocated. Of these 1.25 points, 0.25 points
were for ‘Compliance with Height 10.67m & 3 Storey’ . Again, the
Municipality did not explain why it scored bidders for compliance with the
height restrictions (a meagre 0.25 points), only to exclude them for non -
compliance with that same requirement.
30 An acceptable tender is defined in section 1 of the Preferential Procurement Policy Framework Act 5 o f
2000, as: ‘any tender which, in all respects, complies with the specifications and conditions of tender as
set out in the tender document’ .
c. The report ranked three of the bidders, albeit ‘for indicative purposes only’.
Raubex occupied the top spot. If Raubex was to be excluded for non -
compliance with tender conditions, why place it in a ranking list, even if the
list was only for indicative purposes? Generally, only responsive bidders
are ranked.31
[41] Carnivore mounted a strong defence of the Municipality’s decision. However, its
position was undermined by the fact that the Municipality failed to respond to certain
allegations made by Raubex. In particular, the Municipality did not deny that it knew
that Raubex was willing and able to build the housing units on a three -level
construction model and this adjustment would not affect the bid price . Nor did the
Municipality address the allegations made by Raubex’s quantity surveyor.
[42] Although the BEC report contains the several anomalies described above, properly
construed it is apparent that Raubex’s non -compliance with the height restrictions
constituted the ground for rejecting Raubex’s bid. The anomalies, while unfortunate
and confusing, are not fatal to the decision.
[43] In relation to responsiveness and acceptability , there is a helpful discussion of the
legal principles in Norland Construction .32 According to Govindjee J there is no
formula for evaluating responsiveness and acceptability and the consequences of
non -compliance may vary depending on factors such as the purpose and materiality
of the bid requirement in question and the extent of compliance .33 The learned
judge referred to an article by Volmink, 34 who opined that the courts must enquire
31 Compare Ndodana Consulting Engineers (Pty) Ltd and Another v South African National Roads
Agency SOC Limited and Others 2025 JDR 1066 (GP) (‘Ndodana’) where Van der Schyff J found it
curious that tenders were declared non-responsive after being ranked according to the points system. He
observed that g enerally only responsive tenders are ranked and remarked that this contribute d to the
court’s discomfort with the process followed by SANRAL (para 20).
32 Norland Construction (Pty) Ltd v Chris Hani Development Agency (SOC) and Another [2024]
ZAECMKHC 10 (23 January 2024) (‘Norland’).
33 Ibid para 11.
34 P Volmink ‘Legal consequences of non -compliance with bid requirements’ (2014) 1 African Public
Procurement Law Journal 41.
into the underlying objective and materiality of a bid requirement to ascertain
whether its purpose was in fact met despite less than perfect compliance. A
decision whether to exclude a non -compliant bidder from a bid process will depend
on a variety of factors including: the wording of the request for proposal , the
materiality of the unfulfilled requirements, the degree of non -compliance and the
purpose of the requir ement. Govindjee J noted further that a failure to comply with
prescribed conditions would result in a tender being disqualified as an acceptable
tender, unless those conditions were immaterial, unreasonable or unconstitutional .
Whether or not a deviation or qualification is material is a question to be determined
by the bid evaluation committee in its discretion, taking into account the set eligibility
criteria.35
[44] Raubex submitted that the reliance upon the height deviation was an afterthought ,
and the officials misconstrued their powers and made an error of law . I do not
agree. The subsequent BAC minutes show that the BAC endorsed the BEC’s view
that Raubex’s bid was ‘unacceptable’ and concurred that there was only one
responsive bid. The Municipality therefore adopted the view that Raubex’s bid was
non -responsive prior to awarding the tender to Carnivore. This is not one of those
cases where a decision -maker justifies his or her decision with reasons concocted
after the decision has been challenged.
[45] Raubex also contended that the tender documentation did not state explicitly that a
bid would be disqualified if it proposed something beyond the existing zoning. The
tender n otice did provide , as its first rule , that tenders are to be completed in
accordance with the conditions and tender rules contained in the tender document.
The Tender S pecifications stated that the By -law and the Rezoning Approval
formed part of the applicable ‘standards, specifications and regulations’.
formed part of the applicable ‘standards, specifications and regulations’.
Furthermore, under the heading ‘specifications / requirements’, it stated ‘(t)he
development shall adhere to the development parameters of the relevant zoning
and Town Planning approval, as well as the conditions of the rezoning approval
35 Norland para 13.
date 17 June 2020.’ (Emphasis added.) The Rezoning Approval, which was
annexed, stated that a departure to allow for four, rather than three, storeys, and for
the overall height restriction to be increased from 10.6 m to 12.64 m, had been
refused. In my view , bidders should have appreciated that the height restrictions
were mandatory.
[46] Raubex submitted further that it should have been afforded an opportunity to clarify
its design and its failure to do so was procedurally unfair . The circumstances in
which a bidder is entitled to be given such an opportunity are discussed by Hoexter
and Penfold in Administrative Law in South Africa.36 They note that if the bid is to be
rejected on extraneous grounds, then an opportunity to respond should be given.
One example is where a disparaging report from a third party casts doubt on the
competence of the bidder, in which case the bidder should be heard on the alleged
basis for rejecting its bid. This is not such a case.
[47] Where a bidder is rejected on account of non -compliance with tender conditions
different considerations arise. Hoexter and Penfold express the view that in such an
instance there will generally be no obligation to allow that bidder to make further
representations before rejecting its bid . I agree. There was accordingly no
procedural unfairness on this count.
[48] As to ma teriality, WDR Earthmoving Enterprises v The Joe Gqabi District
Municipality37 is authority for the proposition that regulatory non -compliance is
axiomatically material . Similarly, i n Ndodana the court held that a tenderer who
disregards mandatory bid requirements cannot complain if its bid is declared non -
responsive.38 A study of the case law reveals several instances where non -
compliance with tender requirements, even of a relatively insignificant nature,
36 3 ed (2021) at 517-519.
37 2018 JDR 1295 (SCA) para 34 (bidder only submitted two years of annual financial statements instead
of the three which had been prescribed ).
38 Para 51.
justified the bid being regarded as non -responsive.39 In my view, the requirement
that proposals comply with the hei ght restriction is not ‘immaterial, unreasonable or
unconstitutional ’.
[49] Furthermore, even if Raubex was able to cure the defect in its bid, as it contends, I
do not think the Municipality was obliged to indulge Raubex by providing it with such
an opportunity. This would not be fair on the other bidders. It follows that even if the
Municipality did know that Raubex could adjust its design without altering the bid
price, it was not required to allow Raubex an opportunity to do so.
[50] For all these rea sons, and notwithstanding the anomalies and weaknesses
identified above , I am not satisfied that Raubex has shown that the Municipality
acted unlawfully in so far as it determined that Raubex’s bid was unacceptable or
non -responsive. The application thus falls to be dismissed.
[51] For the sake of completeness, I note that Raubex asserted in its supplementary
founding affidavit that the Municipality had failed to consider relevant information in
evaluating Carnivore’s tender. In argument Raubex’s counsel advised that his client
was not persisting with this attack on Carnivore’s tender.
[52] I note further that Carnivore raised other grounds of opposition to the application.
Having regard to my findings above, I do not consider that it is necessary to address
these further grounds.
Oral evidence
39 Examples include Sizabonke Civils CC v OR Tambo District Municipality 2010 JDR 1174 (ECM)
(certified copies of documents not provided ); Dr JS Moroka Municipality v Betram (Pty) Limited 2013 JDR
2728 (SCA) (original tax clearance certificate not submitted) ; Afriline Civils (Pty) Ltd v Minister of Rural
Development & Land Reform 2016 JDR 1206 (WCC) (failure (a) to furnish tax -certificate of a proposed
sub-contractor and (b) to show that its CIDB registration was valid) ; and Prosec Guards CC v Department
of Public Works and Infrastructure and Others 2024 JDR 2197 (WCC) (did not submit a copy of a valid
registration certificate issued by the National Bargaining Council for the Private Security Secto r).
[53] There is one further matter that needs to be addressed. This is the application made
by Raubex at the hearing for the matter to be referred for oral evidence. The issue
which Raubex sought to have determined by way of oral evidence was ‘whether
(Carnivore) complied with a responsive bid in relation to the tender of (R aubex)
which was found to be non -responsive’.
[54] When pressed in argument, Raubex’s counsel was unable to point to any evidence
in the papers which supported an argument that Carnivore’s bid had been non -
responsive.
[55] The following principles are germane:
a. A litigant should, as a general rule, apply for referral to oral evidence as
soon as the affidavits have been exchanged. 40
b. Courts should be astute to prevent an abuse of its process where it is
evident that a litigant is intent on a fishing expe dition to ascertain whether
there might be a case without there being any credible reason to believe
that there is one.41
c. A party may not seek to lead oral evidence to make out a case for the first
time, by way of such oral evidence, where its case is not already made out
by it on the papers.42
d. Similarly, a party may not seek a referral to oral evidence in the hope that
the persons to be cross -examined may make admissions helpful to that
party.43
40 Mamadi v Premier, Limpopo and Others 2024 (1) SA 1 (CC) para 44.
41 Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184
(SCA) para 56.
42 Ibid paras 57-59.
43 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority and Others 2020 (6) SA 428 (GJ)
para 10.
e. In exercising its discretion to order that oral evidence be heard on any issue,
this court should be guided to a large extent by the prospects of the oral
evidence tipping the balance in favour of the applicant for such relief.44
[56] Raubex’s application falls short on all these counts. It was not brought as soon as the
affidavits were exchanged. Furthermore, it seems to me that it constitutes a search for
a case which does not exist on the papers. Moreover, Raubex has not come close to
showing that the oral evidence envisaged would tip the balance in its favour. In the
circumstances no case has been made out for a referral to oral evidence, and I
therefore decline the belated application for such relief.
Costs
[57] Carnivore advanced a cogent case for the costs to be awarded against Raubex on
a punitive scale . I agree that this litigation has been conducted by Raube x in a
haphazard fashion . Furthermore, several allegations made in its affidavits were
inaccurate. In addition, some of the steps taken were ill -advised. I do not think,
however, that the way the proceedings have been conducted is so egregious as to
warrant a punitive costs order.
[58] As regards the decision not to withdraw the application, I do not think it was
reasonable of Carnivore’s attorneys to persistently demand that the application be
withdrawn on the basis that the judges hearing the initial urgent application and then
Part A, had made adverse finding s in relation to the merits of the application. For
the reasons set out above, the court hearing Part B was not obliged to follow the
approach indicated by the earlier judges.
44 Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) at 979H -J. See also Minister of
Environmental Affairs and Tourism and Another v Scenematic Fourteen (Pty) Ltd 2005 (6) SA 182 (SCA)
para 29.
[59] The stance adopted by Carnivore also displayed a logical inconsistency. Whereas it
demanded that Raubex take heed of the finding s in the interim judgment in relation
to it being non -responsive, the finding in the same judgment that the internal appeal
had been lodged within the 21 -day period did not deter Carnivore from arguing that
the internal appeal had been late, and the application should not be entertained on
this ground alone.
[60] Furthermore, one of the g rounds upon which the interim interdict was refused was
that an expedited review process constituted an alternative remedy. Having
succeeded in Part A in part on the basis that the final relief could be determined
expeditiously , it was inappropriate for Carnivore to then demand that Part B be
abandoned on account of obiter dicta in the interim judgment.
[61] In addition, I do not think the decision by the Municipal ity to reject Raubex’s bid was
unquestionably lawful. As set out above, there were several anomalies in the BEC
report. The correspondence sent by the Municipality to Raubex also contained
mixed signals as to the basis for the impugned decision. Although I have found that
the decision was lawful , Raubex’s wish to subject the decision to judicial review was
not unreasonable .
[62] I therefore do not agree that Raubex’s application was ‘hopeless’, nor that it was an
abuse and a waste of judicial resources . I am also not persuaded that the
application was frivolous or vexatious. This is not an exceptional case where a
punitive costs order is warranted.
Conclusion
[63] To sum up: I agree with Raubex that it did not fall foul of the obligation to exhaust its
internal remedies. I am not persuaded , however, that the decision to eliminate
Raubex and award the contract to Carnivore was unlawful . Raubex having not
complied with the height restrictions, the Municipality cannot be faulted for declaring
it to be non -responsive.
[64] In the result, Part B of the application falls to be dismissed with costs . In my view it
is appropriate to award Carnivore the costs of two counsel , with senior counsel’s
fees to be taxed on scale C, and junior counsel’s fees to be taxed on scale B.
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicant: N Cassiem SC and W van Aswegen
Instructed by: Peyper Attorneys
For first respondent: D Murote
HDRS Attorneys Inc
For second respondent: KW Lüderitz SC and LGM Minné
Instructed by: Adams & Adams