REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NO : 2025-137848
CASE NO : 2025-142195
(1) RE PORTABLE: YES/NO
(2) OF INTE REST TO THE JUDGE S: YE S/NO
(3) RE V ISED .
........ ............... .
DATE o_'f SIGNATURE
"' In the matter between:
SMEC SOUTH AFRICA (PTY ) LTD
-and-
MEC FOR DEPT OF PUBLIC WORKS ,
ROADS AND INFRASTRUCTURE , LIMPOPO
APPLICANT
RESPONDENT
,....,,_
Delivered
Date heard
Coram
MULLER J:
2
12 September 2025
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 12 September
2025 at 10:00 am .
02 September 2025
Muller J
JUDGMENT
[1] The applicant seeks an urgent interim order that pending the determination of the relief
claimed in case no. 12844/2024 in Part B of the notice of motion that the respondent be
interdicted from proceeding with or the implementation of the tender adjudication process
relating to or making an award of Tender LDPWRI-PROF /20529 together with alternative
relief.
[2] The application was served on the respondent and the state attorney on 14 August 2025
and enrolled for 2 September 2025. The respondent was required by the terms of the notice
of motion to notify the applicant not later than 16h00 on 18 August 2025 of its intention to
oppose Part A of the application. The required notice was only delivered by the respondent
on 21 August 2025.
\
3
[3] The notice of motion also required that the answering affidavit be delivered not later
than 16h00 on 21 August 2025. An unsigned affidavit commendably was delivered on 28
August 2025 with the signed affidavit that followed on 29 August 2025.
[4] The roll closed on Thursday 28 August at 12h00. Condonation for the non
compliance with the rules made by the applicant in the urgent application is dealt with in
paragraph 82 to 87 of the answering affidavit.
[5] It is averred that the delay was occasioned by the process of procurement of counsel
within the office of the state attorney for which the client cannot be held responsible. What
is not explained is the delay from 14 August 2025 until 21 August 2025 when notice to
oppose was delivered. That delay could not have been caused by the unexplained
procurement process in the office of the state attorney. It is either because the respondent
failed to instruct the state attorney timeously or because the state attorney failed to deliver
the notice to oppose on or before 18 August 2025. It is not explained when process to
procure the services of counsel commenced and why it took a week to instruct counsel. A
first consultation with counsel was only arranged on 20 August 2025 for 22 August 2025
and a second consultation on 26 August 2025. The affidavit was drafted the next day and
commissioned on 28 August 2025. It is clear that steps to oppose the application were not
taken with the urgency expected from a litigant who is seriously trying to comply with the
time limits, but it continued on a leisurely pace without much concern or effort to abide by
the time limits, even after counsel was instructed.
[6] What the "cumbersome process" to procure counsel entails exactly is yet to be
explained. Condonation is not merely for the asking. The reason proffered for the delay is
inadequate and devoid of substance. This court is unpersuaded that there are valid and
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acceptable reasons advanced by the respondent to condone the late filing of the answering
affidavit. The facts of this matter show an unfortunate disrespect for the process of the court.
[7] It is the case of the applicant that the first tender was withdrawn to circumvent and
render moot an interim interdict granted by Naude-Odendaal J. The suggestion is not
denied. That contention raised another issue whether the respondent is at liberty to simply
withdraw or cancel the tender which is the subject of pending litigation. Counsel for the
applicant relied on the following statement in Knoop NNO and Another v Gupta (Tayob
Intervening): 1
"The impression given by these actions on the part of Mr Tayob was that they might have been
directed at stultifying the appellants' appeals both against the execution order and against the
removal order. That was of concern, because our law is clear that if that is done w ith dolus it may
amount to contempt of court. As long ago as 1906, Mason J in Li Kui Yu said:
' ... where a person knows or has reason to believe or ought to know that an application is being
made to the Court for a certain purpose ---where he has that knowledge, or that suspicion, then,
if he takes any action before the Court can be approached, the Court w ill regard that as an
interference with the administration of justice, and will exercise its powers to prevent itself being
defeated by anything of that kind.'
Subsequent cases have stressed the need for there to be an intention to defeat the ends of justice
amounting to dolus. In Yamamoto De Villiers JP gave, as examples of such conduct, procuring
the disappearance of a witness knowing that they had been subpoenaed to appear or removing
goods with the object of defeating a possible order of court. The question is whether it is 'manifest
that there was an ulterior object - namely to obstruct the due course of justice."2
1 2021 (3) SA 135 (SCA) .
2 par 15.
5
[8] Counsel for the respondent argued that it is open to respondent have cancelled the
tender since the respondent is duty bound to service delivery. It is clear that the respondent
only cancelled the tender after the applicant has drawn attention in the founding affidavit
that the new tender was published without cancellation of the first tender.
[9] The invitation to cancel the first invitation to tender was made with full knowledge and
with the intention to defeat the purpose of the interim order and to render moot the review
in Part B , under case 12844/2024. It has the hallmark of ma/a tides. In Li Kui Yu supra,
Mason J concluded:
" ... it is impossible for me to pass over without some notice what is, I consider, an offence of a
serious kind, namely that of interfering with the administration of justice by taking an action which
is bound to prevent the Court granting a remedy."3
[1 O] The decision demonstrates lack of transparency since the invitation was withdrawn
without any notification to the applicant.4 The conduct of the respondent attracts contempt
of court proceedings and the possibility that that the responsible person(s) be mulcted with
costs de bonis propriis on attorney and client scale and may even be ordered to pay a fine.5
[11] The respondent argued with reference to City of Tshwane Metropolitan Municipality
and Others v Nambiti Technologies (Pty) Ltcf> that that the decision to cancel the first
3 p194.
4
Steenkamp NO v Provincial Tender Board Eastern Cape 2007 (3) SA 121 (CC) par 29 holds: "It goes without
saying that every improper performance of an administrative function would implicate the Constitution and
entitle the aggrieved party to appropriate relief."
5 In Li Kui Yu supra a Superintendent arrested and removed a Chinese labourer from the Transvaal whilst he
expected that the attorneys who acted for the Chinese person will approach the court to apply for his release.
He was held in contempt because the necessary effect was to defeat any order the court may make . He was
ordered to pay the costs of the application de bonis propriis on an attorney and client scale and he was fined
£10.
6 2016 (2) SA 494 (SCA ) par 32.
6
invitation to tender is not administrative action and that it followed that the decision is not
susceptible to review. It was held:
"A decision not to procure services does not have any direct, external effect. No rights are
infringed thereby. D isappointment may be the sentiment of a tenderer, optimistic that its bid would
be the successful one, but its rights are not affected. There can be no legal right to a contract ... "
[12] The facts of that case are different. As matters stand at the moment , none of the
tenderers, have any accrued or vested rights in relation thereto or arising from it.7 The
applicant averred that the litigation is far from over. The record still has to be delivered by
the respondent in terms of rule 53 (under case 12844/2024). It entitles the applicant, as
procedural step in terms of rule 53(4), to amend the prayers to review the new invitation to
tender. The court, however, has a discretion to hear and dispose of the merits when the
matter comes before it notwithstanding the contention that the review is moot at this time.
[13] It bears mentioning that the withdrawal of the invitation to tender may also have
considerable costs implications in case 12844/2024 for the respondent and certain
individuals who might be liable for contempt of court. The parties will have to revisit the
merits for that purpose, no doubt.
[14] The respondent, by way of background, published certain invitations to tender during
2024. The applicants instituted an application under case 12844/2024. By agreement
between the parties an interim interdict under Part A was granted. Under Part B, the
applicant seeks to review certain of the specifications or conditions contained in the tenders.
It is, therefore, accepted for purposes of this judgment that the requirements had been met
7 par 33-34.
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to interdict the respondent from proceeding or implementing or giving effect to the relevant
adjudication processes, pending the review under Part B.
[15] At the end of July 2025, notwithstanding the pending review under Part B , the
respondent invited new tenders for the same services without cancellation or withdrawal of
the first invitation to tender. It caused the applicant to apply for an interim interdict to prevent
the adjudication process pending the finalisation of the review under case 12844/2024. The
first invitation suddenly withdrawn or cancelled by the respondent without notice to the
applicant who has an interest in the tender process by virtue of the order.
[16] It is the applicant's case that some of the offending irregularities in the first invitation
to tender are repeated in the second invitation to tender. When the applicant discovered that
the new invitation to tender was published, it requested an undertaking from the respondent
not to proceed with the procurement process. On 7 August 2025 the respondent replied that
no such undertaking will be forthcoming. Similar undertakings were requested in respect of
other invitations to tender with closing dates between 2nd and 4th September 2025 which
were also refused.8 The battle lines were drawn and triggered the urgent application. It was
held in Smee South Africa (Pty) Ltd v the South African Road Agency9 that:
"Should the Respondent continue to adjudicate and implement the tenders applicable in this
application, and the relief in that review eventually be granted, then all of the steps taken in
adjudicating and implementing such tenders would be void."
The application in my view, is urgent.
8 These invitations to tender are the subject of a second urgent application also before court. It was agreed
at the commencement of the arguments that only one case w ill be argued.
9 [2023] ZAGPPHC 1108 (28/08/2023) par 7.
8
[17) It seems to me , that what was argued in Smee South Africa (Pty) Ltd v the South
African Road Agency supra finds application in the present matter. The applicant is a
competitor in the market who wishes to participate in the procurement process, but do not
want to partake in an unlawful process. It cannot be expected from the applicant to partake
in a tender process which is possibly unconstitutional and unlawful when an invitation to
tender is suddenly without notice cancelled during pending litigation after an invitation to
tender for the same services had been published. The inference is irresistible that the
respondent realised that the first invitation suffered from serious shortcomings and
irregularities and had it withdrawn. It is, furthermore, undesirable for a state organ to invite
tenders for the very same services on similar specifications and conditions which do not
appear to be constitutionally compliant.
[18] The remaining issue of substance raised by the applicant is that the new invitation
to tender is not constitutionally compliant and contain slightly different specifications and
conditions from the first.
[19) Section 217 of the Constitution provides for a procurement system for goods and
services which is fair, equitable transparent, competitive and cost effective. National
Framework Legislation and Preferential Procurement Regulations are applicable. The
tender contains a provision for "Specific Goals" which include "Small, medium and Micro
Enterprises" and "Enterprises located in Limpopo." None of the "Enterprises" are natural
disadvantaged persons discriminated against on the basis of race, gender and disability, as
envisaged by section 217(2)(b) of the Constitution. In addition, 4 of the available 20 points
are allocated to "Enterprises located in Limpopo" This allocation is contrary to a tender
9
process that is open, transparent and procedurally fair and breach the fundamental
principles of competitiveness.
[20) These allegations are met with bald denials. It is trite that a court must assess
whether a real and genuine dispute of facts exists. In Room Hire Co (Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd10 Murray AJP stated:
"While it may well be, once a genuine dispute of fact has been shown to exist, that a respondent
should not be compelled to set out his full evidence in his replying affidavits, a bare denial of the
applicant's material averments cannot be regarded as sufficient to defeat the applicant's right to
secure relief by motion proceedings in appropriate cases"
[21] A respondent must proffer evidence sufficient to constitute an answer to the evidence
adduced by the bank. In Soffiantini v Mould, 11 the court stated:
"If by a mere denial in general terms a respondent can defeat or delay an applicant who comes
to Court on motion, then motion proceedings are worthless, for a respondent can always defeat
or delay a petitioner by such device. It is necessary to make a robust, common-sense approach
to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and
circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide
an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits."
[22) It was noted, more recently, in Wightman tla JW Construction v Headfour (Ply) Ltd
and Another12 that:
10 1949 (3) SA 1155 (T) 1165.
11 1956 (4) SA 150 (E) 154F-H.
12 2008 (3) SA 371 (SCA) par13.
10
"A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed."
[23] This court is satisfied that a prima facie right has been established by the applicant
that it is entitled to a procedurally fair, transparent and fair tender process. The applicant
obtained rights in terms of the order granted by Naude-Odendaal J, to embark on the
process envisaged by the order. The respondent cannot be allowed to capitalize by the
withdrawal of the invitation of the tender when the shoe pinches and then claim that the
horse has bolted. The balance of convenience favours the applicant. Irreparable harm will
be caused if the new tender is allowed to be awarded and the works would commence.
There is no alternative remedy other than an interdict.
[24] This court has the inherent power, in terms of section 173 of the Constitution, to
protect and regulate its process. This court will exercise that power to regulate and to protect
the integrity of court processes and the sanctity of orders of court when there is an attempt
to subvert its processes or orders.
ORDER
1. This application is urgent;
2. Pending the finalization of Part B of the application issued under case number
12844/2024, in the alternative, pending the finalization of Part B of this
application, the Respondent is hereby interdicted and restrained from
proceeding with or implementing and or giving effect to the Tender
adjudicating process relating to and/or making an award in respect of Tenders
LDPWRI -PROF/20536, LDPWRI-PROF/20537 and LDPWRI-PROF/20538
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2.2 the Respondent is directed to provide to the Applicant the names,
registration numbers and business addresses of all persons, and
entities who submitted Tender Offers in regard to Tender:
LOPWRI-PROF/20536 , LOPWRI-PROF/20537 and LOPWRI-PROF
/20538 within fifteen (15) court days of this order being granted, to
enable the Applicant to join the persons/entities concerned in the
application.
2.3 The Applicant is granted leave to join the person/entities
mentioned under the preceding paragraph in Part B of this
application by serving a copy of this application, together with its
Notice of motion and /or Founding Affidavit as amended in terms
of High Court Rules 53 (4), on such persons/entities.
3. The costs of Part A of this application are costs in Part B of the application.
G.C
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION , POLOKWANE
APPEARANCES:
COUNSEL FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENT
INSTRUCTED BY
12
ADV A VENTER
DDKK ATTORNEYS
ADV W MOKHARI SC
ADV L MAPHELELE
STATE ATTORNEY, POLOKWANE