IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: 1544/2024
Date heard : 16th September 2025
Date Delivered:30thSeptember 2025
(electronically)
In the matter between:
SKG AFRICA (PTY) LTD 1st Applicant
HEMIPAC INVESTMENTS (PTY) LTD 2nd Applicant
And
BUFFALO CITY METROPOLITAN
MUNICIPALITY 1st Respondent
ROKEWOOD INVESTMENT GOLDINGS (PTY)
LTD 2nd Respondent
GRAND SELECT 150 (PTY) LTD 3rd Respondent
MAJANGAZA PROPERTIES (PTY)LTD 4th Respondent
JUDGMENT
ZONO AJ:
Introduction
[1] The applicants approached this court on urgent basis for a relief in the
following terms:
“1. That the application be heard as one of urgency in accordance with
the provisions of Rule 6(12) (a) and the non- compliance with the
usual forms, time limits and procedures as envisaged in terms of rule
6(5), including the requirement for service via the sheriff of this
court, be condoned;
2. That the first respondent be interdi cted and restrained from
proceeding with the evaluation and adjudication of the tender
process with tender number: CE 610 for office accommodation for
the first respondent (“CE 610”);
3. That the first respondent be interdicted and restrained from making
an award in CE610, alternatively, if an award has been made by the
time this application is heard and adjudicated, that first respondent
be interdicted and restrained from implementing or further
implementing the award, and in particular from concluding any
contract of lease or otherwise with the successful bidder and from
relocating to the building offered by the successful bidder, pending
the finalization of the review application brought by the first
applicant under case number EL890/2025 (“review application”);
4. That the aforesaid interim interdict remains in operation until the
finalization of the review application or any appeal thereof;
5. That the first respondent, alternatively the first respondent and any
respondent opposing this applicati on jointly and severally, be
ordered to pay the costs of this application, alternatively, that the
costs of this application be reserved for determination in the review
application;
6. That such further and/ or alternative relief as the court deems for b e
granted” (sic).
[2] The interim relief is sought to be in full operation pending
finalization of the review application or any appeal that may follow a
decision in the review application. The review application was
instituted on 15th May 2025 under Case No EL 890/2025 in which the
applicants seek inter alia that the first respondent’s decision to (i)
change the tender requirements of CE569, (ii) cancel CE569 and (iii)
issue a new tender for office accommodation (CE610) with the
changed tender requiremen ts and all related administrative action to
be declared unlawful, reviewed and set aside. Apparently, the review
application is opposed.
[3] This application is opposed by the first respondent (BCM); and in so
doing the BCM delivered its notice to oppose and opposing affidavit
accompanied by the annexures, to which the applicants have replied.
Both parties had delivered their respective heads of argument. The
matter is opposed both on the basis of alleged lack of urgency (in
limine) and merits. I propose to anterially deal hereinafter with the
point in limine and the facts germaine for its determination.
Urgency and facts relating thereto
[4] Rule 6(12) of the URC provides for the abridgment of the times for
the service and filing of process and document s prescribed by the
URC, and the departure from the established sitting times of the court.
The Rule provides:
“6(12) (a) In urgent applications the court or a judge may dispense
with the forms and service provided for in these Rules and
may dispose of su ch matter at such time and place and in
such manner and in accordance with such procedure
(which shall as far as practicable be in terms of these
Rules) as it deems fit.
(b) In every affidavit filed in support of any application under
paragraph (a) of t his subrule, the applicant shall set forth
explicitly the circumstances which it is averred render the
matter urgent and the reasons why the applicant claims
that applicant could not be afforded substantial redress at
a hearing in due course.”
[5] To qualify for an audience in the urgent court, there is a test that an
applicant has to meet. Thus, the test for urgency when an audience is
sought in the urgent court is two-fold:
(a) whether the applicant brought the application with the
requisite degree of urgency.
(b) Whether, not hearing the application on the basis of
urgency will deny the applicant substantial redress in due
course. Where a matter lacks urgency, the court may, for
that reason alone, strike the application from the roll1.
[6] In East Rock Trading 72 Notshe AJ had the following to say:
“6. The import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that he cannot be afforded substantial redress at a hearing in due
course. The question of whether a matter is sufficiently urgent to
be enrolled and heard as an urgent application is und erpinned by
the issue of absence of substantial redress in an application in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal course laid
down by the rules it will not obtain substantial redress.”
[7] Pursuant to BCMS’s advertisement of a tender process during October
2024 under tender number: CE569 for the provisions of office
accommodation, the first applicant (SKG Africa) submitted its bid in
1 Marce Projects (Pty) Ltd v City of Johannesburg Metropolitan Municipality and another 2020 (2) SA
ALL SA 157 (GJ) Para 33.
2 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and others (11/33767)
[2011] ZAGPTHC 196, (23 September 2011) Para 6.
respect of the Trust Centre Build ing, East London. First Applicant’s
bid was submitted in November 2024. Second and Third respondents
submitted their bids too. First and Second applicants (SKG Africa and
Hemipac) are related companies in the same group of companies
known as SKG Properties.
[8] Before an award was made, the BCM cancelled the tender process
under tender number CE569 (CE569). On 28 th March 2025 such
cancellation was published in the daily dispatch. On 02 nd April 2025,
SKG Africa requested from BCM urgent provision of releva nt
information pertaining to the cancellation of CE 569, which
information was not provided on 07 th April 2025, which was the
deadline.
[9] On 25th April 2025 the BCM advertised a new tender under tender
number: CE 610 (CE610) for the same BCM office acc ommodation.
The applicants contend that CE610 should be reviewed and set aside
for various reasons.
[10] On 09 th May 2025, before the institution of the review application.
SKG Africa demanded a written undertaking from the BCM that it
would not proceed with CE610 pending the finalization of the review
application, which undertaking was requested to be given on or before
12th May 2025, and the same was not given on the due date. On the
09th May 2025, SKG Africa envisaged in its letter to BCM that an
urgent application would be brought if no written undertaking is
provided that the BCM would not proceed with tender process CE610.
It is apposite to quote the relevant portion of the urgent demand:
“8. In an attempt to avoid the need for an urgent applicati on, we have
been instructed to demand that you provide us with a written
undertaking that you will not proceed with tender CE610, pending
the finalization to our client’s review application, which
undertaking is to reach us by no later than 17h00 on Monday 12th
May 2025”(sic).
[11] Indeed, a review application impugning CE 610 was duly instituted on
15th May 2025. On the same date of advert of CE610, SKG Africa
caused a letter to be penned to the BCM, in which it intimated to the
fact that SKG Africa reser ves its rights to bring an interdict
application against the new tender (CE610). In the letter the author
thereof intimated to the fact that the matter is urgent as at that date and
it contemplated urgent proceedings.
[12] It is common cause that the rev iew application was instituted on 15 th
May 2025. I reiterate that SKG Africa sought to review and set aside
BCM’s decisions cancelling CE569 and a decision to issue CE610.
When review application was instituted, the BCM had not made an
undertaking not to proceed with CE610. When the review application
was launched it was unequivocal that the BCM had failed to give the
requested undertaking. In the review application SKG Africa invoked
the provisions of Rule 53 of URC in that it should be provided with
the record of the decision in both CE 569 and CE610. The record was
given only on 25 th July 2025, notwithstanding that the due date was
06th June 2025.
[13] SKG Africa asserted that the information in the record received on
25th July 2025 prompted urgency of this application. No application
was made on urgent basis soon after this date. Curiously, SKG Africa,
having realised that the matter is urgent, only reiterated its demand for
the suspension of CE610, which request was expressely refused on
06th August 2025 by the BCM, through its attorneys. On 07 th August
2025, having understood BCM’S refusal to suspend CE610, caused a
further correspondence to be transmitted to BCM in which a demand
for suspension of CE610 was repeated. BCM’s attorneys promised to
come back to SKG Africa with a response once they had consulted
with their client on 15 th August 2025, which they did not do until 20 th
August 2025 when the instant application was prepared. We know
that this application was filed on 21st August 2025 at 10:32:52.
[14] Thereanent to the point in limine , the issue for determination is
whether this application has lost its urgency or the urgency is self -
created. It is well established that the applicant cannot create its own
urgency by simply waiting until the no rmal rules can no longer be
applied3.
[15] In Spilkin4 Lowe J had the following to say:
“15 An Applicant cannot create its own urgency by simply
waiting till the normal rules can no longer be applied.
16. If the above is satisfied other issues come to be considered,
some of which are:
3 Ngquma and another v Staats President; Damons NO v State President; Jooster v State President 1988
(4) SA 224 at 243 D; Sokhani Development and Consult ing Engineer’s (Pty) Ltd v Alfred Nzo District
Municipality (1254/2024) [2024] ZAECMKHC 44 (26 April 2024) Para 12-14.
4 ENX Group Limited v Spilkin (2296/2022) [2022] ZAECQBHC 42 (8 November 2022) Para 15 -16.
16.1 Whether Respondent can adequately present its case
in the time given;
16.2 Other prejudice to Respondent and the administration
of justice;
16.3 The strength of Applicant’s case and any delay in
asserting its rights (self-created urgency)”.
Dilatory conduct in bringing the application or that urgency was
self- created is a relevant factor to be taken into account in urgent
applications5.
[16] There is interconnectedness betwee n the instant application and the
review application. It is because of that interwoveness that
considerations herein will be made with reference to the review
application launched under case No EL 890/2025. The relief sought
herein is subject to the outcom e of the review application. That being
said, the facts giving rise to the present application are more or less
the same facts that are implicated in the review application. I will
come back to this later in this judgment when dealing with the
institution of the review application.
[17] Firstly, the tender process CE569 was cancelled on 28 th March 2025.
At that time, it was clear to the SKG Africa that it harboured a view
that the cancellation is unlawful and it would be followed by a review
challenge. Wh at was further clear to SKG Africa is that the
cancellation is an affront to its rights. It is unthinkable that those
rights were unidentifiable at that stage.
5 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) Para 14 C-D.
[18] Of fundamental importance is the publication of the new CE610
tender process on 25 th April 2025 which, according to SKG Africa it
impermissibly and unlawfully amended the conditions of CE569 to
suit the specific needs of a particular tenderer or bidder. It dawned on
the same day of 25 th April 2025 that BCM’S conduct is offensive to
SKG Africa’ s rights to a fair, transparent and competitive tender or
procurement process6. For purpose of interim or temporal interdict a
right to be set up must be prima facie established though open to some
doubt7. I am fortified by the contents of the letter penned on 25th April
2025 at the instance of SKG Africa to BCM, portion of which reads as
follows:
“This conduct is highly prejudicial to our client and our client reserved
the right to interdict the new tender process. In this regard we urge you to
furnish us with the requested information by close of business today, but
by no later than close of business on 2 nd May 2025, failing which our
client reserves the right to, make this correspondence available in any
court proceedings, required for the protection of o ur client’s rights”
(sic).
[19] It is discernible from this correspondence that SKG Africa was aware
of the kind of prejudice that had befallen it. Secondly, it was always in
SKG Africa’s contemplation that an urgent application is warranted
under the circumstances. Curiously, when the deadline arrives on 02 nd
May 2025, SKG Africa did not bring urgent application in accordance
with its contemplation. On 09 th May 2025, after outlining the kind of
inequity and unfair conduct of BCM which apparently lacked
transparent and competitive features, SKG Africa caused a further
letter to be penned to BCM.
6 Section 217 of the Constitution.
7 Webster v Witchell 1948 (1) SA 1186 (W) at 1189.
[20] The relevant portions of the letter of 09 th May 2025 are worded as
follows:
“7. Our client contends that tender CE610 accordingly suffers of
reviewable irregularities. We have been instructed to seek a review
of the relevant, impugned administrative action and to otherwise
protect our clients interest which may include an urgent
application for appropriate relief.
8. In an attempt to avoid the need for an urgent application, we have
been instructed to demand that you provide us with a written
undertaking that you will not proceed with tender CE610, pending
the finalization of our client’s review application, which
undertaking is to reach us by no later tha n 17h00 on Monday, 12
May 2025” (sic).
[21] The written undertaking requested on 09 th May 2025 was not given
on the 12 th May 2025, but SKG Africa in its founding affidavit
expressely stated that the undertaking was refused. Surprisingly, SKG
Africa did not bring this application upon refusal by BCM to make a
written undertaking to suspend tender process CE610. It is my
considered view that all subsequent letters insisting on written
undertaking were not necessary in the light of the refusal by the BCM
to furnish same. This application should have been instituted at this
stage.
[22] In paragraph 105 of the founding affidavit SKG Africa makes the
following allegations:
“105. The tender document in CE610 (FA10) was made available only
on 5 May 2025. On 9 May 2025, SKG Africa expressed concerns
regarding the legality of CE610 and its intention to seek a review
of CE610. SKG Africa repeated its request for the documents
pertaining to CE569 and again demanded a written undertaking by
no later than 12 May 202 5 that the BCM would not proceed with
CE610 pending the finalization of the review (FA11). The BCM
refused”.
[23] On 15th May 2025, SKG Africa launched the review application. An
unequivocal bizarre occurred when SKG Africa failed to institute this
urgent application at that stage. Under normal circumstances and in
the interest of expedition and cost -effectiveness, this application
should have been incorporated in the review application as Part A. In
any event, there is no explanation for SKG Africa’s fail ure to launch
this application at least simultaneously with the review application,
when an undertaking was refused on or about 12 th May 2025. All the
information that was necessary for the launch of this application was
available to SKG Africa atleast on 15th May 2025 when it was
launching the review application, but it was not launched. I do not
accept that the urgency in this matter was triggered by the receipt and
perusal of the information in the review record. There is no reference
to any part of th e record in this application that triggered the
institution of this application.
[24] At all material times the BCM had always indicated, expressely and
by necessary implications that it sought to proceed with tender process
CE610. That intention was clea r when the tender process 610 was
advertised. No contrary intention was ever shown by BCM. I therefore
find no difficulty in concluding that the applicants unnecessarily
delayed in bringing this application, and that there is no urgency in
this matter; if there is any, it is self -created. There is no explanation
for applicants’ delay in launching this application from atleast the date
which the written undertaking was refused. Equally there is no
explanation why this application was not simultaneously launc hed
with the review application.
[25] Applicants relied on judgment of Marce Projects 8 in the heads of
argument which reads as follows:
“[49] The corollary to an unsuccessful tenderer’s duty to promptly
impugn the awarding of a tender, is the duty upon t he contracting
government entity to promptly engage with it and to accede to its
requests for information . Where the City fails in this duty, it is
dissembling of the City to contend that the unsuccessful tenderer
should not be given an audience in the urg ent court because it
delayed to approach the court.
[50] For its tardiness in responding to Marcè’s request for information,
the City ought not to benefit from Marcè’s delay in bringing the
application by having it struck from the roll . It only responded to
Marcè after it instituted the application, declining Marcè’s PAIA
request. Yet it subsequently filed the information as required by
Rule 53 (1).” [emphasis added]
[26] In Marce the information that was belatedly furnished to the
applicant had a bearin g on the urgent interdict applications, hence it
was held that the city ought not to benefit from the delay it caused by
not timeously giving the information.
[27] Marce is distinguishable to this case in a number of respects. Unlike
the applicant in Marce9 the applicants herein approached this court
without a full and proper explanation for their delay. The applicants
should have given full and proper explanation justifying the delay to
launch an urgent application10. I will cite only two important examples
of applicants’ failure to explain the delay. When the applicants first
learnt that the BCM is refusing to furnish an undertaking not to
8 Marce Projects (Pty) Ltd v City of Johannesburg Metropolitan Municipality 2020 (2) SA ALL SA 157
(GJ) Para 49-50.
9 Marce Projects (Pty) Ltd v City of Johannesburg Metropolitan Municipality and Another 2020 (2) SA
ALL SA 157 (GJ) Para 42.
10 Dimension Data (Pty) Ltd v Minister of Justice and Constitutional Development and another
10 Dimension Data (Pty) Ltd v Minister of Justice and Constitutional Development and another
(25737/2016) [2016] ZAGPPHC 842
proceed with the implementation of tender CE610, the applicant failed
without justification and good reasons to urge ntly bring this
application. Secondly, when the review application was launched, the
applicants failed to simultaneously or immediately thereafter institute
the instant proceedings. The applicants consistently failed to explain
at least these two failures.
[28] The applicants herein failed to bring this application at the first
available opportunity. The first available opportunity, if one is
benevolent to ignore the 28 th March 2025, 24 th April 2025 and 25 th
April 2025, was on 12 th May 2025 when an underta king was refused.
The second available time was on 15th May 2025 or so soon thereafter
when the review application was instituted. This application was
launched some three months after the institution of the review
application.
[29] In the amalgam of all this, this application should be struck from the
roll. Contrary to what BCM Counsel submitted, I see no malafides on
the part of the applicants. I will neither dismiss this application nor
mulct the applicants with punitive costs.
Order
[30] In the result I make the following order:
1. This application is struck off from the roll with costs.
_____________________________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the Applicants : Adv J. Pretorious
Instructed by : SIM ATTORNEYS INC
3 Dudely Road
Johannesburg
Tel: 011 880 4075
Ref:M NEL/SKG-BCM CE569-CE610
Email: marthie@simattorneys.co.za
c/o :GRAVETT SCHOEMAN INC
The Hub, Bonza Bay Road
Beacon Bay
East London
Tel: 043 748 2857
Email: ian@gslegal.co.za ;
fiorella@gdlegal.co.za
Counsel for the 1st Respondent : Adv N.L. Ntsepe with
Adv Z. Nxazonke –Mashiya
Instructed by :SMITH TABATA INC
12 St Helena Road
Beacon Bay
East London
Email: ginaf@smithtabata.co.za
yandam@smithtabata.co.za
Second Respondent :DRAKE FLEMMER & ORSMOND INC
Quenera Office park
12 Quenera Drive
Beacon Bay
East London
Tel: 043 722 4210
Email: angus@drakefo.co.za
ngus@drakefo.co.za
Vanessa@drakefo.co.za
Third Respondent : :GRAND SELECT 150 (PTY) LTD
101 Western Avenue
Vincent
East London
Email : dewald@gselect.co.za
leonatta@gselect.co.za
Fourth Respondent :MAJAMGAZA PROPERTIES(PTY) LTD
21 Gonubie Palms
Gonubie
East London
Email: advocategas@gmail.com
Due to the fact that it is recess and that this matter was brought on
urgent basis, this judgment was handed down electronically by
circulation to the above mentioned legal representatives by email and
release to SAFLII. The date and time for hand -down is deemed to be
14h30 on Tuesday 30th September 2025.