IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 2025-077739
In the matter between:
J S MARITIME PARTNERS (PTY) LTD Applicant
and
MINISTER OF FORESTRY, FISHERIES AND
THE ENVIRONMENT First respondent
DIRECTOR-GENERAL OF FORESTRY, FISHERIES
AND THE ENVIRONMENT Second respondent
REASONS DELIVERED ON 30 SEPTEMBER 2025
VAN ZYL AJ:
Introduction
1. On 12 June 2025 I granted the following order:
1.1. The applicant’s non -compliance with the forms, time periods and
service requirements of the Uniform Rules of Court is condoned, and
Part A of the application is heard as one of urgency under Rule 6(12).
1.2. Part A of the application is dismissed on the basis that the applicant
has not satisfied the requirements for the grant of an interim interdict.
1.3. Each party will pay its own costs in respect of Part A of the application.
2. These are the reasons for the order.
Background
3. The background to these proceedings is essentially common cause. On 11
April 2025 the Department of Forestry, Fisheries and the Environment ,
published a tender1 for the appointment of a service provider for the crewing
and manning, technical and commercial management of the polar supply and
research vessel SA Agulhas II and the environmental and research vessel RV
Algoa. The contract was to endure for a pe riod of 60 months. The closing
date for bids was 23 May 2025.
4. The current .service provider is African Marine Solutions Group (Pty) Ltd
("AMSOL"), whose contract has been extended to September 2025 . T his
was, in fact, the third time that this bid invitation had been issued . AMSOL’s
contract had previously been extended to March 2025, and it was thereafter
extended for a further six months to accommodate the new round of tendering
and adjudicating.
5. The two vessels in question are valuable State-owned assets, and the tender
for their operation and technical management was published pursuant to the
statutory and executive mandates of the respondents in relation to
environmental and oceanographic scientific research and the South African
Antarctic Expedition ("SANAE") research stations located in Antarctica and
the Sub -Antarctic Marion and Gough islands. Th e effective operation of the
1 Under Bid Number DFFE-8004.
SANAE research stations is a matter of strategic national interest for South
Africa, which is an original signat ory to the Antarctic Treaty , signed by twelve
countries on 1 December 1959.
6. The vessels are the only South African vessels capable of providing multi -
purpose logistics support to the SANA E and dedicated scientific
environmental research around the South African coastline. It is imperative
that the SA Agulhas II undertake annual relief voyage s to the Antarctic region
between December and March each year to deliver inter alia overwintering
supplies for the South African research base in Antarctica , and to provide the
transport for the overwintering team and base maintenance personnel.
7. The SA Agulhas was scheduled to depart on its next voyage to the South
African scientific research bases on the sub -Antarctic Marion and Gough
Islands during September 2025. The SANAE annual relief voyage to the
South African research base on the Antarctic ice shelf was scheduled for
departure during December 2025 , and it was anticipated that both these
would be undertaken by a service provider appointed pursuant to the tender.
8. A compulsory briefing session in relation to the tender was held on 23 April
2025. The session was attended by a representative of the applicant , who
raised questions orally, and who w as requested to direct w ritten questions to
the Department. These questions were responded to on 14 May 2025.
9. By the closing date of 23 May 2025 three bids had been received, and the bid
prices were made public on 27 May 2025 . The tender evaluation processes
were ongoing at the time of the institution of this application.
10. The applicant chose not to submit a bid in response to the tender, but instead
instituted an application in two parts, of which Part A was before this Court. It
sought, in essence, an interdict prohibiting the respondents from awarding the
tender pending the outcome of the final relief sought i n Part B of the
application.
11. Part B entailed an application for judicial review, seeking the setting aside of
the tender, alternatively, seeking the following relief:
“2.1 that the answers provided by the Respondents are declared to be insufficient
and are reviewed and set aside;
2.2 that the Respondents' decision to ignore, alternatively reject, the Applicant's
Letter of Protest is reviewed and set aside;
2.3 that the Respondents' decision to ignore, alternatively reject, the Applicant's
Letter Requesting an Extension of the Closing Date is reviewed and set
aside;
2.4 that the Applicant be provided with proper answers to the questions raised by
it; as set out in the Founding Affidavit to enable it to Tender;
2.5 that the Closing Date of the Ten der be extended to a date to be
determined.by this Honourable Court to enable the Applicant to Tender;
2.6 that TENDER DFFE 8004 (25/26) SA AGULHAS II be remitted to the
Respondents for a reconsideration of the point allocations therein contained,
upon the consideration of relevant and material factors, as se t out in the
Founding Affidavit."
The respondents’ points in limine
12. The respondents raised three points in limine in opposition to the application ,
part from their opposition on the merits.
13. I refer to each of these points only briefly, as I was of the view that, although
there might have been merit in them, it was in the interests of justice that the
merits of the application be considered insofar as it entailed the grant of
interdictory relief.
Lack of urgency
14. The respondents took issue with the urgency with which the application was
brought, but I was of the view that it was sufficiently urgent to warrant
determination on the urgent roll.
15. I agreed with the respondents’ argument that the urgency was to some extent
self-created. The applicant’s complaint lay with the alleged lack of information
in the tender documents, which had been available since 11 April 2025, and
not with the adjudicati on of the tender. It waited until 28 May 2025 , after
receipt of the respondents’ answers on 14 May 2025, to bring an urgent
application seeking to halt the adjudication process, which application turned
out to be voluminous and strenuously opposed despite the extremely tight
timelines posed for the delivery of answering papers.
16. It is well -established that a court will first consider whether an applicant has
averred facts which, objectively speaking, demonstrate urgency. Where the
application lacks the requ isite element or degree of urgency, the court may,
for that reason, decline to exercise its powers under Rule 6(12)(a). 2 In other
words, where the facts indicate that the urgency is self -created, an applicant
will not necessarily be entertained.
17. Essentially, however, the question was whether the applicant demonstrated
that it would not be afforded substantial redress at a hearing in due course. 3
In the present case that question was answered in the affirmative. This Court
had, moreover, considered the papers, and the parties had delivered detailed
heads of argument. The matter was, despite the short period within which it
proceeded to court, well -ventilated and ready for determination. I was
accordingly satisfied that it should be entertained.
Non joinder
18. The applicant, quite obviously, f ailed to join any of the three bidders who had
submitted bids. It appears from the papers that the applicant did not take
steps to ascertain the identity of the bidders prior to the issue of non-joinder
being raised in the answering papers.
2 See Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd 2006 (4)
SA 292 (SCA) para 9.
SA 292 (SCA) para 9.
3 East Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty) Ltd and others [2011]
ZAGPJHC 196 (23 September 2011) para 6.
19. The legal principles underlying the law on joinder are well-known:
"The issue in our matter, as it is in any non -joinder dispute, is whether the party
sought to be joined has a direct and substantial interest in the matter. The test is
whether .a party that is alleged to be a necessary party has a legal interest in the
subject matter, which may be affected prejudicially by the judgment of the court in the
proceedings concerned."4
20. No court can make findings adverse t o any person's interests, without that
person first being a party to the proceedings before it.5
21. The applicant contended in reply that its application was distinguishable from
that of an interdict pending the review of a tender which ha d been awarded
since, in the latter case, a successful bidder has a direct and substantial
interest because if the review is successful, it will no longer be the successful
tenderer. The present case , however, sought to review and set aside the
whole tender , and potential bidders d id not have a direct and substantial
interest because they did not have any right to be awarded the tender.
22. I failed to see the logic in this argument because it would deprive the applicant
itself of a direct and substantial interest to challenge the bid. It disregarded, in
any event, the import of and consequences arising from the interim
interdictory relief sought which, if granted, would be to interdict the
respondents, pending the determination of the review application, from
proceeding with the evaluation and adjudication of the tender . The bidders
undeniably had an expectation in relation to the award of the tender.
23. The applicant was remiss in failing to cite the bidders, whose identities could
easily have been obtained fro m the respondents ,6 and this failure would
4 Gordon v Department of Health: Kwazulu-Natal 2008 (6) SA 522 (SCA) para 9.
5 Matjhabeng Local Municipality v Eskom Holdings Limited and others; Mkhonto a nd others v
5 Matjhabeng Local Municipality v Eskom Holdings Limited and others; Mkhonto a nd others v
Compensation Solutions (Pty) Limited 2018 (1) SA 1 (CC) para 92.
6 See Pretoria FM NPC v Chairman of the Independent Communications Authority of South
Africa [2023] ZAGPPHC 18 (16 January 2023) para 23: "… the other applicants in the ITP -R
process do have a vested interest in the issues raised and the outcome of this application
and should have been joined. The fact that the applicant did not know the identity of the other
undoubtedly loom large during the determination of Part B of the application.
The bidders’ bid prices had already been disclosed, and the potential
reopening of the tender process would thus be prejudicial to them. As to
AMSOL in p articular the relief sought by the app licant in Part B (quoted
above) could arguably be regarded as involving its commercial informati on,
the disclosure of which would obviously affect AMSOL's rights and interests.
24. I was however willing, specifically for the purposes of Part A of the application
and in light of the view I took of the merits of the applicant’s case , to accept
the applicant’s submission that the applicant had addressed correspondence
to the three bidders notifying them of the application, and therefore that they
were aware of the proceedings. One of the bidders indicated that it would not
join in the proceedings. Another (AMSOL) reserved its rights but declined to
take part in the hearing. The third bidder did not respond.
25. I did not wish to risk elevating form over substance in circumstances where
the bidders, if joined, would probably abide, and thus dealt with the application
on that basis.
Lack of standing
26. It was clear from the content of the founding and replying affidavits that the
applicant essentially sought relief in its own interest, although it indicated that
it also acted in the public interest.
27. The respondents argued that, because the applicant h ad failed to submit a
bid, the applicant had no standing to seek the relief sought in either Part A or
Part B of its notice of motion.7
28. I had doubts as to whether the applicant had made out a case based on
applicants is no excuse and this could have easily been obtained from ICASA.”
The court nevertheless proceeded to consider the interim relief sought, in the event that its
finding on non-joinder was wrong (at para 24).
7 With reference to Areva NP Incorporated in France v Eskom Holdings Soc Limited and others
2017 (6) SA 621 (CC) para 36.
2017 (6) SA 621 (CC) para 36.
I
standing in the public interest, given the requ irements in that regard as
enunciated in, for example, Ferreira v Levin NO and others; Vryenhoek and
others v Powell NO and others .8 That is an issue that will have to be
considered by the review court as far as Part B of the application is
concerned.
29. For the purposes of Part A, I accepted that the applicant prima facie had
standing on the principle s set out in SMEC South Africa (Pty) Ltd v City of
Cape Town and others; SMEC South Africa (Pty) Ltd v City of Cape Town and
others:9
“[92] There are cases in which vagueness, ambiguity or inconsistency in tender
documents has led to the award of tenders being set aside at the suit of disappointed
bidders. While there is no reason to doubt that a disappointed bidder may seek to
impeach an award on this basis, the argument in those cases did not focus attention
on whether the reviewable decision is simply the award of the tender or whether such
a review necessarily encom passes an attack on the decision to issue the tender on
terms suffering from vitiating vagueness, ambiguity or inconsistency. This question is
important, having regard to the time -limit for review proceedings laid down section
7(1) of PAJA. ACSA10 is an example of a case where the decision to issue the tender
was explicitly challenged. In principle, it seems undesirable that a bidder should be at
liberty to “take a chance” in the hope that it will be awarded the tender, keeping in
reserve an attack on the v alidity of the tender terms should it be unsuccessful in
winning the bid. However, in view of the conclusion I have reached on other aspects,
I need not finally decide this point.”
30. I accordingly determined the relief sought in Part A on that basis.
The requirements for the grant of interim relief
31. The requirements for the grant of an interim interdict are the following:11
8 1996 (1) SA 984 (CC) para 234.
9 [2022] ZAWCHC 131 (23 June 2022) para 92.
8 1996 (1) SA 984 (CC) para 234.
9 [2022] ZAWCHC 131 (23 June 2022) para 92.
10 Airports Company South Africa SOC Ltd v Imperial Group Ltd and others 2020 (4) SA 17
(SCA).
11 See Prest Interlocutory Interdicts (1993) at 54-86.
31.1. A prima facie right – this need not be shown on a balance of
probabilities, but is sufficiently proved if prima facie established though
open to some doubt. The stronger the right is, the less need there is
for the balance of convenience to be considered.
31.2. A well-grounded apprehension of irreparable harm if the interim relief is
not granted and the ultimate relief is eventually granted – this is a harm
that a reasonable person might entertain on being faced with certain
facts, and is an objective test.
31.3. A balance of co nvenience favouring the grant of the interim relief – the
Court must weigh the prejudice the applicant will suffer if the interim
interdict is not granted against the prejudice to the respondent if it is.
31.4. The absence of any other satisfactory remedy in the circumstances.
32. The proper approach in determining whether to grant an interim interdict is to
take the facts set out by the applicant, together with any facts set out by the
respondents which the applicant cannot dispute, and to consider whether,
having regard to the inherent probabilities, the applicant should on those facts
obtain final relief at the trial.12
33. All of th ese requirements must be met by an applicant seeking an interim
·interdict, and even if they are all met, the Court still has the dis cretion to
refuse to grant the interdic t sought. By contrast, if an applicant fails to satisfy
all four requirements mentioned above, the Court has no discre tion to grant
an interdict.·
34. An important consideration in the present matter is that it is common cause
that tender for the operation and management of the vessels has been
published pursuant to the respondents’ executive and statutory mandates in
12 Gool v Minister of Justice 1955 (2) SA 682 (C) at 688D-E.
relation to research underlying the functions of the vessels . The effect of the
interim relief sought would constitute a restraint on the exercise of the se
statutory and executive powers and mandates.
35. A court may grant a temporary restraining order against the exercise of
statutory or executive powers only in exceptional cases , and when a strong
case for that relief has been made out. 13 The Court must recognise and
assess the impact of temporary restraining orders when dealing with those
matters pertaining to the best application, operation , and dissemination of
public resources. The question is thus not merely whether an interim interdict
against a state functionary is competent , but also whether it is constitutionally
appropriate to grant the interdict. 14 The Court must be satisfied that the
applicant for an interdict in these types of cases has good prospects of
success in the main review, ba sed on strong grounds which are likely to
succeed.15
36. In the present matter, I did not think that the applicant cleared the hurdles
posed, firstly, by the requirements for the grant of th e relief sought and,
secondly, by the prospects of success requirement. I consider this in the
course of the discussion below. ·
Did the applicant demonstrate a prima facie right?
37. At a basic level, I did not consider that the applicant had shown a prima facie
right. It sought to rely on its right to lawful, reasonable , and procedurally fair
administrative action under section 33 of the Constitution16 as the basis for its
application to review and set aside what it refer red to as "administrative law
decisions”.
38. An applicant can, however, not rely on a professed right to review the
13 National Treasury and o thers v Opposition to Urban Tolling Alliance and others 2012 (6) SA
223 (CC) paras 41-45.
14 National Treasury supra para 66.
15 Economic Freedom Fighters v Gordhan 2020 (6) SA 325 (CC) para 42.
16 The Constitution of the Republic of South Africa, 1996.
impugned decisions based on section 33 of the Constitution . The prima facie
right that must be established for an interim interdict is not simply an
applicant's right to approach the court for a review:17
"Under the Setlogelo test, the prima facie right a claimant must establish is not
.merely the right to approach a court in order to. review an administrative decision. It
is a right to which, if not protected by an interdict, irreparable harm would ensue. An
interdict is meant to prevent future conduct and not decisions already made. Quite
apart from the right to review and to set aside impugned decisions, the applicants
should have demonstrated a prima facie right that is threatened by an impending· or
imminent irreparable harm. The right to review the impugned decisions did not
require any preservation pendente lite."
39. The nature of the prima facie right asserted by the applicant was described in
the founding papers either as “ the right or reasonable apprehension of a right
to be, alternatively a legitimate interest in being, appointed as the preferred
bidder", a prima facie right “to t ender once it has been provided with the
information reasonably required to do so", or a right based on the notion that
the applicant " ...has been unlawfully, unduly and unfairly excluded from the
tender process."
40. I agreed with the respondents’ submission that none of these bases on which
the·applicant asserted its prima facie right were ultimately sustainable. The
applicant approache d the prima facie right enquiry squarely by focusing on
the grounds on which it sug gested that it ha d good prospects of success in
the review application. This was not the correct approach for determination of
the first requirement underpinning the grant of an interim interdict . The
question was not whether the applicant had established the existence of a
prima facie right on the basis of its alleged prospects of success in the review
prima facie right on the basis of its alleged prospects of success in the review
(although its prospects fell to be c onsidered given the impact of the interdict
sought),18 but rather whether the applicant had demonstrated that it ha d a
17 National Treasury supra para 50.
18 See, for example, Economic Freedom Fighters v Gordhan supra para 54: “ …The interim
interdict test, which has been developed through case law – culminating in the OUTA test – is
sound and has sufficient safeguards to ensure that the Public Protector is not denuded of her
prima facie right which was threatened by ir reparable pending or imminent
irreparable harm. This the applicant had not done.
41. It seemed to me, in any event, that the applicant did not have good prospects
of success on review. I say this m indful of the fact that the final determination
of the merits of the review application lies with the review court, and therefore
discuss the main grounds of review only briefly.
The alleged undue influence issue
42. The applicant made allegations regarding irregularities in the tender process
without laying a factual foundation therefor. The applicant’s main contention
was that it believed the tender process to have been unduly influenced to
favour AMSOL, the incumbent service provider.
43. Apart from the fact that AMSOL was not cited as a respondent to the
application and thus did not respond to these accusations, the applicant’s
case in this respect was speculative. It alleges that the conduct of the
Department "reflects conduct made for an ulterior purpose and in bad faith as
a direct·result of undue influence." There is no factual basis for this
contention in the founding affidavit and, despite an invitation to provide the
require=site detail by the respondents in their answering papers, none in the
replying affidavit.
44. The respondents pointed out that the procurement process relating to the bid
specifications in the terms of reference of th e tender had been independently
vetted and subject ed to quality assurance review by an external firm
specializing in internal audit, forensics , and related advisory work. This firm’s
advice had been sought and implemented prior to the advertisement of the
tender. The internal verification and vetting pr ocess were also explained.
powers when an interim order is granted against her. In light of OUTA, it is evident that the
interim interdict test must be informed by the normative scheme and democratic principles
interim interdict test must be informed by the normative scheme and democratic principles
buttressed by the Constitution. This test is broad and supple enough to take into account the
constitutional role and function s of the Public Protector and to ensure that she is not
inadvertently stripped of her powers.”
None of the respondents' statements regarding the independent external
vetting of this procurement process and its internal approval processes
relating to the tender specifications were meaningfully disputed in reply.
45. There was no basis on which undue influence, a form of corruption, c ould be
inferred from the allegations in the founding affidavit. The drawing of
inferences must be based on admitted or proven facts, not matters of
conjecture or speculation.19
The attendance register issue
46. This was a storm in a teacup. The applicant complained that a n attendance
register completed at the compulsory briefing session on 23 April 2025 had
been altered afterwards. The respondents provided a full explanation in this
respect, which was not disputed in reply.
The respondents’ alleged failure (adequately) to respond to the applicant’s questions
47. The applicant complained that the respondents failed to respond to its
questions, which it regarded as being crucial for the completion of its tender .
The response ultimately given was too late.
48. It was common cause that the De partment did respond to the applicant’s
questions on 14 .May 2025, nine days before the closing date for the tender.
The tender documents and detaile d terms of reference had already been
published a month prior, on 11 April 2025. The applicant did not explain,
whether in its founding or its replying affidavit, precisely why it had not been
able to prepare any aspect of a bid in response to the tender b efore 14 May
2025, or in the nine days thereafter.
49. Notably, two other bidders (as well as AMSOL) received the same tender
documentation, and were able to submit bids by the tender closing date of 23
19 A M and another v MEC for Health, Western Cape 2021 (3) SA 337 (SCA) para 21.
May 2025. The applicant placed much emphasis on the vast price differentials
between those bidders, arguing that that showed that their bids were
inaccurate – but that was an aspect to be determined by the Department in
the evaluation of the bids in due course. I t appeared that the applicant
required commercial data in the form of the historical -spend data and the
planned maintenance system of the incumbent service provider prior to
submitting a bid.
50. If the tender and its terms of reference were as vague and unclear as the
applicant held them out to be, th e other two bidders would no doubt have
directed similar questions to the Department. There was, however, no
evidence of confusion on their part. The applicant’s complaint that by the time
it had been provided with answers to its questions it was too late to submit a
bit thus had a hollow ring to it.
51. It had to be kept in mind that a n invitation for the services required under the
tender had initially been issued in October 2023 , but it was cance lled in
February 2024. It was re -issued in April 2024 , with bidders being given 21
days to submit the ir bids. This process was cancelled in October -2024 and
the tender was issued again in April 2025. In the 2025 process, potential
bidders were given 42 days to submit a bid. There was no dispute that this
period was double the 21 days minimum period that the National Treasury
prescribed for bids to remain open.
52. It was also undisputed that various of the questions which the applicant
claimed were insufficiently answered by the Department on 14 May 2025, had
been asked by the applicant’s representative (and answered) at the previous
round in 2024 when the tender was not awarded. I accept the applicant’s
submission to the effect that those questions had been asked by a different
representative as part of a different joint venture, and I do not know whether
the two tenders were in all respects similar. Neverhtless, given the nature of
the two tenders were in all respects similar. Neverhtless, given the nature of
the services required, there must have been some overlap. Why the applicant
was unable to submit a bid on the most recent remained essentially
unanswered, especially as bidders had been invited to indicate the bases on
which they determined their pricing - this was not a tender that would
automatically be awarded to the lowest bidder. The applicant did not dispute
that it knew of the submitted bids and prices tendered for the tender when had
been advertised during 2023 and 2024.
53. The functionality criteria stipulated in the terms of reference, which were
common cause, made it clear that this tender was one for the appointment of
an experienced and qualified service provider who would be able to provide a
complete suite of services o n all operational and logistical aspects relating to
the crewing, manning, technical administration, and enabling infrastructure
necessary for the vessels safely and effectively to perform their functions. The
functionality criteria included the bidders' e xperience and track record in the
field of ship management , technical management , crew management , and
commercial management services, including the qualifications and experience
of the project team leader assigned to the project, existing enabling support
structure of the bidder , and the bidder's experience and track record with
successfully completed projects.
54. The experience and qualifications of potential service providers should th us
logically be taken into account when assessing the reasonableness of a
complaint by· a bidder that a tender document was vague and fail ed
reasonably to provide information necessary for the submission of a bi d. The
applicant regarded itself , quite correctly so, qualified and experienced in the
subject matter of the tender. It was common cause (although not disclosed in
the founding affidavit) that the applicant owns and operates the SA Agulhas I,
the vessel previously commissioned by the South· African government to
supply the SANAE research bases located in Antarctica and the Sub-Antarctic
Marion and Gough islands. The applicant had previously purchased and
refitted the SA Agulhas I for the purpose of performing similar functions to the
refitted the SA Agulhas I for the purpose of performing similar functions to the
SA Agulhas II , and it is currently available for c harter as a fully operational
research vessel for polar and offshore supply and support . The applicant
strenuously emphasized the differences between the vessels and the fact that
the information application to the one would not apply to the other. Its
argument in this respect dd not, however, detract from the fact of its
experience and knowledge in the field.
55. The Department , in responding to the applicant’ s queries regarding the
tender, accordingly pointed out that bidders with adequate experience in
managing vessels should use their experience to articulate the assumptions
underlying their bids. For example, in relation to questions regarding
historical true spend and crew requirements , the Department stated that the
applicant should use its experience to estimate and extrapolate in its bid.
Assumptions made during the bidding and in their proposals should be clearly
articulated. These were the types of answers that the applicant took umbrage
at. There is, however, nothing unla wful or irrational about a tender process
which evaluates a bidder's proposal for services on the basis o f clearly
articulated assumptions provided by that bidder.
56. It must be k ept in mind that the applicant had exercised its right to seek
clarification and submit questions in respect of any of the requirements of the
tender process at the compulsory briefing session on 23 April 2025, and it had
the chance to clarify the mea ning of any clause in the tender about which it
was . unclear prior to completing and submitting a bid, as long as this was
done, in terms of the tender document, prior to the 10 days preceding the bid.
In responding to the applicant 's questions, the Department was obliged to
treat all potential bidders equally and fairly. Had the Department made special
enquiries with one bidder, for example AMSOL, regarding factual data relating
to the pricing of AMSOL's operations or its bid, this could well have deprived
the tender process of the essential fairness element of competiti veness. An
extension of the period for the submission of bids at the behest of one
potential tenderer could have resulted in accusations of undue influence or
bias from other bidders.
57. Procedural fairness in tender processes depends on the circumstances o f
57. Procedural fairness in tender processes depends on the circumstances o f
each case. The essential attribute s of fairness, transparency,
competitiveness and cost effectiveness of the tender process have to be
maintained.20 The applicant could accordingly not rely on a right to be given
an opportunity to be provided with as much information as it subjectively
considered sufficient to submit a bid for the tender. Whilst vagueness can
render a procurement process procedurally unfair , the test for vagueness is
reasonable certainty, not absolute certainty or perfect lucidity.21
58. The review court will no doubt analyse the Department’s responses to all of
the questions posed by the applicant to determine whether the tender process
was unlawful because of vagueness or insufficient information. I do not intend
doing so. Suffice it to say on consideration of the evidence on record that
there was, on the information provided by the Department, no clear
explanation as to why the applicant could not have submitted a bid. The
applicant was not excluded from the bid process – it chose not to submit a
bid. I was constrained to agree with the respondents’ submission that, shorn
of verbiage, the applicant’s actual complaint was not that the information
provided by the Department was insufficient, b ut that the applicant disagreed
with the technical evaluation criteria adopted by the respondents and how
those criteria were to be assessed.
59. The determination of bid evaluation criteria and their weighting are , however,
matters of discretionary executive policy determination , and court will not
readily interfere. Where a functionary is entrusted with a discretion (in this
case, the determination of bid evaluation criteria ) the manner of their
assessment and the relative weight to be attached to particular factors, is a
matter for the functionary to decide . As long it acts in good faith , reasonably
and rationally, a court cannot interfere.22
The incumbent’s “unfair advantage”
60. The applicant’s grounds of review relied heavily on its argument that AMSOL's
20 Metro Projects CC v Klerksdorp Local Municipality 2004 (1) SA 16 (SCA) para 21.
20 Metro Projects CC v Klerksdorp Local Municipality 2004 (1) SA 16 (SCA) para 21.
21 Allpay Consolidated Investment Holdings (Pty) Ltd and others v Chief Executive Officer of the
South African Social Security Agency and others 2014 (1) SA 604 (CC) para 87.
22 MEC for Environmental Affairs and Development Planning v Clairisons C C 2013 (6) SA 235
(SCA) para 22.
current operation of the two vessels g ave it an unfair advantage over
competitors when it came to bidding. It must however be clear to anyone
involved in public procurement that there is always an incumbent who mig ht
wish to bid afresh for the relevant contract. The applicant’s position was not
special in that respect.
61. The applicant contended that the "Incumbent Supplier has access to all the
information as they have been managing these vessels for more than 10
years. That fact in itself gives them an unfair advantage and it would be
impossible to compete with that level of institutional knowledge. This creates a
situation whereby no new entrant will ever have a fair opportunity to enter the
market. This by defau lt makes the tender process fundamentally flawed as it
creates a barrier to the possibility of any new entrants into this sphere. This
results in the situation whereby one service provider has access to all relevant
information and the other bidders are forced to guesstimate for their costing
which essentially guarantees their estimates to be more factual as they are
based on actual data rather than assumptions."
62. This argument did not, in my view, give rise to a basis for review, but was a
complaint about how the world works. Inevitably, whenever a contract comes
to an end and a government department issues a tender, there would be an
incumbent who had previously rendered the service which forms the subject
matter of the tender. This does not entitle any new bidder effectively to a
handbook on how the incumbent elected to fulfil the relevant service. The
mere fact that an incumbent service provider has the benefit of previously
having performed the services does not render a subsequent procurem ent
process in which that service provider participates irrational, unfair, or
unlawful.
63. The purpose of the trite requirement that a tender document must be
reasonably clear is to ensure that a tenderer knows what information is
reasonably clear is to ensure that a tenderer knows what information is
expected of it for the merits of its bid fairly to be assessed. The purpose is not
to ensure that a tenderer is given all information it requires from the procuring
entity to enable such bidder to submit its most advantageous tender. The
applicant did, in any event, not submit a bid at all.
64. The respondents referred to the position adopted in other jurisdictions, in
particularly in European Union ("EU") law. The approach of the E uropean
Court of Justice ("ECJ") on the question of incumbent advantage in public
procurement is instructive. It has held that the principle of equal treatment in
procurement processes would be infringed by a blanket exclusion of
incumbent service providers from future bidding for the same service. In
Fabricom SA v Belgian State (Cases - C21/03 and C -34/03),23 for example,
the ECJ endorsed the view that the principle of equal treatment is infringed by
a rule that prohibited an economic operator from bidding for a public contract
where such an entity had been involved in preparatory works leading to the
tender in question.
65. In Evropaiki Dynamiki v Commission of the European Communities,24 the ECJ
dealt with the issue of an alleged inherent de facto advantage of an incumbent
service provider bidding in a subsequent procurement process . The ECJ held
as follows:
"... The principle that tenderers should be treated equally does not place any
obligation upon the contracting authority to neutralise absolutely all the advantages
enjoyed by a tenderer where the existing contractor is a subcontractor of that party.
To accept that it is necessary to neutralise in all respects the advantages en joyed by
an existing contractor or a tenderer connected to that party by virtue of a subcontract
would, moreover, have consequences that are contrary to the interests of the service
of the contracting institution in that such neutralisation would entail additiona l cost
and effort for that institution. Nevertheless, in order to comply with the principle of
equal treatment in this particular situation , a balance must be struck between the
23 Judgment of the ECJ (Second Chamber) of 3 March 2025.
24 Judgment of the Court of First Instance (Third Chamber) of 12 March 2008 paras 72 -74. See
also Proof IT SIA v European Institute for Gender Equality (Case T-10I17), Judgment of the
ECJ (Third Chamber) dated 16 October 2018 para 187 : "… the alleged advantage of the
successful tenderer … is not the consequence of any conduct on the part of the contracting
authority. Unless such a contractor were automatically excluded from any new call for tenders
or, indeed, were forbidden from having part of the contract subcontracted to it, it is in fact
inevitable that an advantage will be conferred upon an existing contractor or the tenderer
connected to that party by virt ue of a subcontract. since that is inherent in any situation in
which a contracting authority decides to initiate a tendering procedure for the award of a
contract which has been performed, up to that point. by a single contractor.”
interests involved. Thus, in order to protect as far as possible the principle of equal
treatment as between tenderers and to avoid consequences that are contrary to the
interests of the service of the contracting ins titution, the potential advantages of the
existing contractor or a tenderer connected to that party by virtue of a subcontract
must none the less be neutralised, but only to the extent that it is technically easy to
effect such neutralisation. where it is economically acceptable and where it does not
infringe the rights of the existing contractor or the said tenderer."
66. This approach is, with respect, sensible. A n incumbent provider will inevitably
have an advantage that other tenderers will not. This is be cause they will
have knowledge of the subject matter of the contract. Such an inherent
advantage does not render the procurement process unfair.
67. In the present case the tender document, read together with the information
provided by the respondents to p otential bidders at the compulsory briefing
session, created a level playing field by setting out in advance the criteria on
which their proposals would be judged. There is no evidence that the tender
terms of reference have been deliberately skewed in fav our of a particular
bidder, or that the outcome of the tender process was a foregone conclusion.
68. The applicant was of the view that a technical inspection of the vessel would
have assisted in the formulation of its bid in relation to crew, maintenance,
fuel rates, and insurance. However, the factors that inform these issues were
in the bid documentation and within the applicant’s know ledge and
experience, and not on the vessels . In the circumstances, I do not regard the
applicant as having a reasonable prospect of succeeding on th is ground of
review.
A reasonable apprehension of harm?
69. An applicant seeking an interim interdict must show that, without the interdict
69. An applicant seeking an interim interdict must show that, without the interdict
being granted, it can reasonably expect to be prejudiced irreparably. The
applicant’s case was weak on this requirement.
70. Its main contention in this respect was of a conclusory nature, namely that
"unreasonable delays in the granting of the interdict sought by the Applicant
would result in losses and damages being suffered and would accordingly
occasion significant hardship and prejudice, not only for the Applicant but for
the people of South Africa, the Sta te and the related governmental
departments that are the subject of the tenders."
71. The applicant provided n o factual basis for the alleged "losses and damages
being suffered" or the feared "significant hardship and prejudice" . its
allegations were in any event contradictory: on the one hand, the applicant
claimed that the continuation of the tender process w ould result in it suffering
unspecified losses and damages ; o n the other hand, the applicant did not
claim that it would be entitled to be awarded the tender if it succeed ed in its
Part B relief. At the core of it the applicant contended , on its own version, for
allegedly irreparable harm on a hypothetical or speculative scenario , in which
it "would' suffer unspecified "losses and damages". This is an obvious hurdle
in the way of the applicant satisfying this second requirement for the grant of
interim relief.
72. This is of course not the end of the enquiry. An applicant must also show that
it has no other way of addressing th e harm it fears. The applicant chose not
to submit a bid, and had no right to be awarded the tender. It could hardly lay
the blame for the harm and for the remedies (or lack of remedies) it had at its
disposal at the respondents’ door.
73. I was accordingly in agreement with the submission made by the respondents’
counsel that the applicant failed to show compliance with this requirement for
interdictory relief, which in the present instance c ould only be granted "in the
clearest of cases", on such a tenuous basis.
The balance of convenience
74. If I was wrong in the determination of the first two requirements (in particular,
74. If I was wrong in the determination of the first two requirements (in particular,
the view that the applicant failed to demonstrate the existence of a prima facie
right (even a weak one) or a reasonable prospect of success on review), then
I considered that an interim interdict should not be granted because the
balance of convenience did not favour the applicant.
75. This requirement is to some extent linked with the prima facie right for the
grant of an interim interdict, and highlights the discretion a court has in the
grant of interim relief:25
"In every case of an application for an interdict pendente lite the court has a
discretion whether or not to grant the application. It exercises this discretion upon
consideration of all the circumstances and particularly upon a consideration of the
probabilities of success of the applicant in the action. It considers the nature of the
injury which the respondent, on the one hand, will suffer if the application is granted
and he should ultimately tum out to be right,' and that which the applicant, on the
other hand, might sustain if the application is refused and he should ultimately tum
out to be right. For though there may be no balan ce of probability that the applicant
will succeed in the action, it may be proper to grant an interdict where the balance of
convenience is strongly in favour of doing so, just as it may be proper to refuse the
application where the probabilities favour th e applicant if the balance of convenience
is against the grant of interim relief . The exercise of the court's discretion usually
resolves itself into a nice consideration of the prospects of success and the balance
of convenience - the stronger the prospec ts of success, the less the need for such
balance to favour the applicant; the weaker the prospects of success, the greater the
need for the balance of convenience to favour him."
76. The applicant alleged in its founding affidavit that the balance of conveni ence
favoured it because "... the interdicting of the tender process does not cause
any undue prejudice to the State." It half-concedes, nevertheless, that in the
any undue prejudice to the State." It half-concedes, nevertheless, that in the
event that there may be any prejudice to the Sta te, "... such prejudice is
justifiable in the circumstances." The exact nature of such justification is
unclear.
77. It appeared from the answering papers that the grant of an interim order
would stop the current procurement process , and would prejudice the
25 Prest The Law and Practice of Interdicts (1996( at 79. My emphasis.
respondents’ responsibility to ensure that a qualified service provider was
appointed to manage its vessels before they depart on the missions
scheduled for September and December 2025. I agreed with the respondent
that the prejudice was obvious. There was an urgent n eed for the services to
be provided. The public interest would not be served by a suspension of the
tender process for a third time, which could result in delays in the execution of
the planned 2025 projects. Apart from the time wasted, the entire process
would be vitiated and would for different reasons be rendered unfair given that
the pricing of bidders (apart from the applicant, who did not bid) would have
been disclosed.
78. The applicant did not dispute that the respondents’ current contract with the
incumbent service provider was in force until September 2025 , or that a new
vessel management company had to be appointed and in place by then as
the next voyage of the SA Agulhas II was scheduled shortly thereafter. It was
common cause that the tender process itself had to be finalised by the end of
June or July 2025 to allow for a sustainable handover period, ideally a period
of three months, to any new service provider before the termination of the
current contract . There was, notably, n o dispute that if an interdict was
granted, the ensuing review proceedings would probably not b e finalised by
July 2025.
79. The only real response by the applicant to the respondents' allegations
regarding the prejudice that w ould follow if the interim inter dict were to be
granted, was that the respondents could extend the current service provider's
contract. This attitude, for what it is worth, indicated that the applicant had
been aware of AMSOL's legal interest in the relief sought, and still failed to
join it to this application. It was in any event not an answer to the
respondents’ case on prejudice.
80. There could be no guarantee of such an extension, which would have had to
80. There could be no guarantee of such an extension, which would have had to
be agreed. An extension w ould also incur additional expenditure by the
respondents beyond the existing contractual terms of the agreement with
AMSOL, with a knock-on effect on the departmental budget. An extension
would, moreover, not address the prejudice to the respondents arising from
the time wasted if the entire process thus far was effectively vitiated because
the pricing of the bidders ha d already been disclosed , and the applicant
ultimately failed in its review application. This would prejudice not only of the
respondents but also the current bidders.
81. I was therefore not convinced that the applicant had demonstrated the greater
potential harm should its interdict application be rejected. The balance of
convenience did not favour it when compared to the respondents’ position.
No other satisfactory remedy
82. The applicant accordingly failed to satisfy the first three requirements for the
grant of an interim interdict. It was, in the circumsta nces, not strictly
necessary to consider whether it ha d any other satisfactory remedy at its
disposal.
83. The applicant argued that, were the tender allowed to proceed, it would enjoy
no claim for damages other than for out -of-pocket expenses, and thus did not
have an alternative remedy. This contention was not entirely correct, because
the applicant would possibly have a claim for compensation in relation to a
loss of profits under the Promotion of Administrative Justice Act 3 of 2000
should it establish its standing , and if it were to be successful in the review
and in establishing some form of undue influence or c orruption in the tender
process as it implies in its founding affidavit:26
“[54] … Loss is sustained relative to the hypothetical situation in which the defendant
does not commit the delict. Had the respondent lawfully evaluated and awarded the
tender, the opportunity that the applicant claims it lost – the tender – would not have
become a nullity. And, assuming that causation is established, it would have been
able to realise that opportunity through the award of the tender and would thus have
accrued profits. Relative to this hypothetical situation, therefore, the applicant did
accrued profits. Relative to this hypothetical situation, therefore, the applicant did
26 See the detailed discussion in Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality
2023 (2) SA 31 (CC) paras 28-56. My emphasis.
sustain loss. Put differently, the applicant is e conomically worse off than it would
have been had the tender been lawfully adjudicated. The nullity of a tender process
does not foreclose the possibility of a compensatory claim for loss of profit.
[55] In short, therefore, a tenderer in the position of t he applicant is, in appropriate
circumstances, entitled to recover its lost profits in terms of PAJA. Generally, an
order setting aside a decision and remitting it to the decision -maker for a fresh
determination or, in exceptional circumstances, an order o f substitution will suffice to
vindicate the interests of both the public and the aggrieved tenderer. But that will not
always be the case. The relief available in terms of section 8 is exemplary rather than
exhaustive. This is apparent from the language o f section 8(1) which provides that a
court may grant “any order that is just and equitable, including” the relief detailed in
that section. Undue weight should therefore not be accorded to the fact that section
8(1)(c)(i), which provides for remittal, is f ramed disjunctively from section
8(1)(c)(ii)(bb), which provides for compensatory relief. Likewise, the fact that section
8(1)(c)(ii)(aa), which provides for substitution, is framed disjunctively from section
8(1)(c)(ii)(bb), does not mean that an order of substitution is, in all cases, a true
alternative to a compensatory order.”
84. In any event, in the light of my findings in relation to the other requirements for
the grant of an interim interdict, it is not necessary to debate this aspect.
Costs
85. Costs are in the discretion of the Court. This was constitutional litigation, and
I was of the view that, for the purposes of Part A and despite the applicant
litigating with a commercial motive, it would be fair that each party pay its own
costs.27
Conclusion
86. In the circumstances , I did not consider that the applicant had satisfied the
requirements for the grant of the interim interdictory relief sought in
requirements for the grant of the interim interdictory relief sought in
27 Nu Africa Duty Free Shops (Pty) Ltd v Minister of Finance and others 2024 (1) SA 567 (CC)
paras 149, and 279-281.
circumstances where the “clearest of cases”28 was required, and I granted the
order set out at the beginning of these reasons.
P. S. VAN ZYL
Acting Judge of the High Court
Appearances:
For the applicant: Mr M. Nowitz and Mr M. Williams, instructed
by Dirk Kotze Attorneys
For the respondents: Ms N. Bawa SC and Mr S. Magardie ,
instructed by the State Attorney
28 See Economic Freedom Fighters v Gordhan supra paras 40 and 48.