IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
NOT REPORTABLE
Case No.: CA84/2025
In the matter between:
SNR ELECTRICAL CC Appellant
and
GEORGE LOCAL MUNICIPALITY First
Respondent
COASTAL ARMATURE WINDERS & SUPPLIERS CC Second
Respondent
LUKHOZI CONSULTING ENGINEERS (PTY) LTD Third
Respondent
JUDGMENT
EKSTEEN J:
[1] The appellant, SNR Electrical CC (SNR), was a disappointed bidder in response
to a tender invitation that had been issued by the George Local Municipality (the
Municipality). It instituted proceedings to review and set aside the award of the tender
to the second respondent, Coastal Armature Winders and Suppliers CC (Coastal). The
notice of motion was structured in two parts. In Part A it sought an urgent temporary
interdict, pending the finalisation of the review proceedings, to restrain the Municipality
from ‘implementing and/or executing any of the works contemplated in the award of the
tender’, or from taking any steps aimed at the implementation thereof pursuant to the
contract that had been concluded with Coastal as a consequence of the award. In Part
B, which was postponed and is still pending, it sought to set aside the award of the
tender to Coastal and an order directing the Municipality to award the tender to it. The
third respondent, Lukhozi Consulting Engineers (Pty) Ltd (Lukhozi), is a firm of
consulting engineers that had been appointed to prepare the tender documentation and
to advise the Municipality in respect thereof. Neither Coastal nor Lukhozi participated in
the proceedings in respect of Part A. The urgent relief sought under Part A was
dismissed in the East London Circuit of the High Court, Eastern Cape (the tria l court)
and the appeal is with leave of the trial court.
The nature of the tender
[2] The Municipality is the water services authority 1 and the water services provider
for the area of its jurisdiction, the city of George. There are approximately 300 000
people living within this area. In discharging its obligations, it is required to maintain:
(a) 160 sewer pump stations along critical biodiverse areas and nature reserves;
(b) 5 wastewater treatment facilities that discharge into critical diverse river courses
upon final treatments;
(c) 50 pump stations to ensure that water is supplied to all areas within the urban
edge;
(c) 50 pump stations to ensure that water is supplied to all areas within the urban
edge;
(d) 4 water treatment facilities to ensure the provision of safe, clean drinking water
that conforms with health-based targets and water quality standards; and
(e) 2 raw water pump stations.
1 As defined in s 1 of the Water Services Act, 108 of 1997.
[3] Much of their equipment is old and requires regular maintenance and
refurbishment, which places strain on the internal capacity of the Municipality.
Accordingly, during 2024, the Municipality issued an invitation to tende r for a
mechanical and electrical maintenance contract for the provision of maintenance and
upgrades to its critical water and sewer infrastructure, on an ad hoc basis, as and when
required, for a period of three years. In its advisory report to the Muni cipality’s Bid
Evaluation Committee (BEC), Lukhozi explained that contractors are used on an ad hoc
basis to assist in the execution of the maintenance and upgrading work where the
department has inadequate capacity to perform the work internally. They ar e appointed
on a rate-only basis and are used as and when required.
[4] The extent of the work that the successful tenderer would be called upon to
perform, or the quantities of components that it will be required to deliver during the
contract period are n ot defined and are dependent on the Municipality’s requests, as it
may arise from time to time. Agreements of this nature, usually referred to as pacta de
contrahendo, are well known in our law. 2 McIlrath’s case was demonstrative of the
effect of such a contract. McIlrath’s had entered into an agreement with Pretoria
Municipality to perform certain cartage work at agreed prices whenever required by the
Municipality. Where an agreement of this nature results in a firm offer, and is not too
vague, it will be enforceable. In circumstances where the remuneration or the price is
ascertainable, the contractual duties must be performed whenever demanded within
limits fixed by the agreement (the pactum)3. Each demand or order initiates a separate
definable contract containing some of its own terms and some of the terms imported by
the pactum.
[5] The constitutional era has changed the procurement procedure where organs of
[5] The constitutional era has changed the procurement procedure where organs of
state participate in requisitioning tenders. Persons dealing with organs of state are now
2 See Montrose Diamond Mining Co. v Dyer 1912 TPD 1 at 5; McIlrath’s v Pretoria Municipality 2012 TPD
1027 at 1037; Lugtenborg v Nichols 1936 TPD 76 at 79; Hirschowitz v Moolman and Others 1985 (3) SA
739 (A) at 765I; Wessels: Law of Contract (2nd ed) para 217.
3 See H Merks & Co. (Pty) Ltd v The B -M Group (Pty) Ltd and Another 1996 (2) SA 225 (SCA) 233D -
235G.
in a different position to what they would have been in had they been dealing with non -
state bodies that are subject only to the common law. There are now constitutional, and
other legislative provisions, which bind organs of state in the way tenders are invited,
considered, and awarded. However, once a tender has been awarded the contract
which has been formed falls to be interpreted in the same manner as any other contract.
The only peculiarity that arises is that a tender in the form of a standing offer requires a
tenderer to perform work, or to supply goods of a specified type, at the q uoted price, as
and when required. The acceptance of such a tender results in a pactum de
contrahendo4. Contracts of this kind vary in the extent of the obligations imposed by
each party. It is perfectly acceptable for a successful tenderer to supply t he goods as
and when required, and for an organ of state, in turn, to commit itself to order all the
goods exclusively from the contractor as and when needed. 5 There is nothing new in
this principle.6 However, in the absence of sufficient indications t o the contrary, it will
not be implied that the contractor will be entitled to receive any work under the
contract,7 nor that work will not be given to another contractor, subject of course, to
lawful procurement processes.8 In the present matter the suc cessful bidder’s rights and
expectations would be dependent upon the proper interpretation of the tender
documents and the contract that resulted from the award of the tender. The tender was
advertised on 1 July 2024, but neither the invitation to tender nor the tender documents,
nor the contract eventually concluded with Coastal were included in the papers before
us. There is accordingly insufficient information before us to determine whether the
tender intended that all, or any, maintenance work require d during the contract period
would necessarily be performed by the successful bidder. I shall revert to the nature of
would necessarily be performed by the successful bidder. I shall revert to the nature of
the contract to the extent material to the adjudication of the matter.
The material disputes
4 Christie’s Law of Contract in South Africa (8th ed) at p. 60.
5 Phoebe Bolton: The Law of Government Procurement in South Africa (2007) B26 at para 3.2.2; and
Premier, Free State, and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA).
6 See Union Government v Vianini Ferro-Concrete Pipes Ltd 1938 AD 560.
7 Christie’s Law of Contract at p. 51.
8 See Beka (Pty) Ltd v Nelson Mandela Bay Metropolitan Municipality and Another (unreported judgment
of the High Court, Port Elizabeth, delivered on 30 August 2011 (case no. 768/2011).
[6] Before I consider the legal position, it i s necessary to refer briefly to the material
disputes in the matter. As I have said, SNR was a disappointed bidder that sought a
temporary interdict pending the resolution of Part B of the notice of motion. I have
alluded earlier to the fact that the comp lete tender documentation was not before us,
and Mr Nyangiwe, on behalf of SNR, acknowledged that it did not serve before the trial
court. However, in essence, SNR contended that the BEC had abdicated its functions
in favour of Lukhozi 9 who had unlawfully participated in the evaluation of the bids, and,
secondly, that they ought to have scored higher than Coastal in respect of both price
and functionality. They said that Lukhozi was biased against them and had provided the
BEC with a misrepresentation of the rates contained in their bid when considering the
reasonableness of their tender and had unlawfully altered the amount of their bid. Thus,
they contended that the tender ought to have been awarded to them.
[7] The Municipality denied any unlawful involvement by Lukhozi and contended that
Lukhozi had been appointed as the consultant and technical specialist, in an advisory
capacity, to the Municipality, and performed their functions in compliance with the
Municipality’s Supply Chain Management Policy.10 It also said stated that SNR was not
evaluated for price, because their bid was eliminated from consideration due to the
unrealistically low rates quoted, which created a risk that it would not be able to perform
the required work adequately at the quoted r ates. The Municipality said that SNR’s
tender contained numerous arithmetical errors, mainly relating to the overall total for the
various bills of quantity, which were not in accordance with the actual sum of the line
totals. The net result was that SNR’s overall tender, correctly calculated, in fact
amounted to R25 096 954,78, excluding VAT, higher than the quoted figure. The BEC,
amounted to R25 096 954,78, excluding VAT, higher than the quoted figure. The BEC,
acting on the advice of Lukhozi, concluded that many of the rates quoted were
unrealistic and non -market related, which, due to their out of balance nature, artificially
affected the received tender price, making it unfair for same to be used as a competitive
base on which to evaluate the tender.
9 The BEC adopted the advice provided by Lukhozi and, in their minutes they repeated exactly the
formulation of Lukhozi’s advisory bid evaluation report.
10 The Municipality Supply Chain Management Policy was also not included in the papers.
[8] Thus, Lukhozi, on behalf of the Municipality, requested SNR to clarify their pricing
as set out in its bid. SNR responded, but the BEC, again acting on advice from Lukhozi,
found their explanation to be less than convincing. They opined that the explanation
merely exacerbated the problem arising from the unrealistic prices that ampl ified the
commercial risk to the Municipality. Accordingly, SNR was eliminated from the process
and was not considered further. 11 The issue relating to the unrealistic pricing and the
commercial risk that it may pose to the Municipality raises a material dispute of fact. As I
have said, Lukhozi did not participate in the proceedings under Part A of the notice of
motion, but they have entered an appearance to oppose Part B. Accordingly, further
evidence may still be received which may have a material impac t on the resolution of
the dispute.
The temporary interdict
[9] I turn to the requirement for a temporary interdict. To succeed in Part A of the
notice of motion SNR was required to establish
(a) a prima facie right, even if it is open to some doubt;
(b) a reasonabl e apprehension of irreparable and imminent harm to the right if an
interdict is not granted;
(c) that the balance of convenience favours the grant of the interdict; and
(d) that it has no other remedy.12
SNR clearly had no other suitable remedy, so the latter requirement is easily met.
11 It was at all times common cause that the Construction Industry Development Board (CIDB) Act, 38 of
2000, applied in respect of the tender. The ‘Best Practice Guid eline #A3: Evaluating tender offers’, Fifth
Edition, of the CIDB document 1003, published in February 2008 in terms of s 5(2)(b) of the CIDB Act
provides for the process of evaluation. It enjoins the BEC to assess the reasonableness of all offers
before the award of points for the financial offers. In the assessment of the reasonableness the guideline
provides:
provides:
‘It is important that the offer receiving the highest number of points for price is realistically priced.
Unrealistic financial offers (i.e., whe re it is not economically possible to execute the contract at that price)
distort the scoring of price. In cases where a tenderer has tendered a favourable unrealistic financial
offer, the evaluator should ascertain as to whether or not there is a valid r eason for the tender price being
unrealistic. This may necessitate that the tenderer be interviewed. If there is no valid reason, the tender
offer must be eliminated from further consideration.’
12 National Treasury and Others v Opposition of Urban Tollin g Alliance and Others 2012 (6) SA 223 (CC)
at para 41.
[10] Mr Nyangiwe argued, both in the trial court and in this court, that SNR had a
clear right to the relief sought. The trial court in dismissing the relief sought in Part A of
the notice of motion, held that SNR had failed to satisfy the requirements for an interim
interdict, in particular that it had failed to establish that it had a clear right or that there
was a reasonable apprehension of harm. However, it is not clear from its reasons
whether it considered that SNR had established a prima facie right, albeit open to some
doubt, or whether it considered that they had failed to establish any right at all. Hence
the appeal.
[11] In developing his argument, Mr Nyangiwe contended that SNR had a clear right
to:
(a) fair, equitable, competitive, and transparent tender processes;
(b) the evaluation of its tender in terms of the framework established in terms of
national legislation;
(c) administrative action that is lawful from a reasonable and procedurally fair;
(d) treatment and conduct that complies with the Constitution and applicable law; and
(e) the evaluator is scored for price and preference.
He proceeded to assert that, whereas SNR had a clear right it was not required to
establish the existence of the further requirements for a n interim interdict, being a
reasonable apprehension of harm, and that the balance of convenience favours them.
[12] It is settled that where a clear right has been established, as opposed to a prima
facie right, a well-grounded apprehension of irreparable harm need not be established.13
However, it does not follow that an interdict would be granted in the absence of a
reasonable apprehension of harm. In Setlogelo14 De Villiers CJ explained:
‘The argument as to irreparable injury being a condition precedent to the grant of an interdict is
derived probably from a loose reading in the well -known passage in Van der
Linden's Institutes where he enumerates the essentials for such an application. The first, he
13 Setlogelo v Setlogelo 1914 AD 22 at 227 ; LF Boshoff Investments (Pty) Ltd v Cape Town Municipality;
Cape Town Municipality v LF Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C).
14 At 227.
says, is a clear right; the second is injury. But he does not say that where the rig ht is clear the
injury feared must be irreparable. That element is only introduced by him in cases where the
right asserted by the applicant, though prima facie established, is open to some doubt’.
An interdict, whether temporary or permanent, is directe d at preventing injury, and even
where a clear right has been established an injury, actually committed or reasonably
apprehended, remains a necessary element which must be established in order to
entitle an applicant to an interdict.
The right established
[13] In Webster15 it was said:
‘In the grant of a temporary interdict, apart from prejudice involved, the first question for the
court … is whether, if interim protection is given, the applicant could ever obtain the right he
seeks to protect. Prima facie that has to be shown.’
Accordingly, the right in issue, generally, is the right to succeed in the review
proceedings.16 Whether an applicant has a right is a matter of substantive law, but
whether it is clear is a matter for evidence. 17 So, where an appli cant asserts a right
protected by the Bill of Rights in the Constitution, as SNR sought to do in this case, the
existence of the right is indisputable. 18 But that is not enough. An applicant for an
interdict must go further and demonstrate, on a balance of probability, an invasion of
that right, alternatively, a well -grounded apprehension of an infringement thereof, if the
interdict is not granted. The Constitution provides, after all, that everyone has a right to
fair administrative action, but whether t here has been an invasion of that right , which, if
not protected by an interdict, would cause harm, is a matter that is in dispute. 19 It
seems to me therefore that where the authorities refer to a clear right, it is reference
rather to a right clearly established.
15 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189.
15 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189.
16 See also Economic Freedom Fighters v Gordhan and Others 2020 (6) SA 325 (CC) at para 42.
17 See Law of South Africa 1st reissue vol 11 para 310 at p. 288.
18 See National Treasury at para 46 and Eskom Holdings SOC Limited v Vaal River Development
Association (Pty) Ltd and Others [2022] ZACC 44 at para 192.
19 See National Treasury at para 50; and Free State Gold Areas Ltd v Merriespruit (Orange Free State)
Gold Mining Co. Ltd and Another 1961 (2) SA 505 (W) at 524.
[14] Thus, whether a right is clearly established depends largely upon the
circumstances of the particular case. Where the facts alleged to establish an invasion
of the right are admitted or not disputed, the right may be said to be clearly
established.20 But where there is a material dispute of fact, as I have found that there is
in this case, there can be no question of a ‘clear right’. 21 However, there may yet be an
established prima facie right to the relief claimed in the main suit. In deciding whether a
prima facie right has been established a court should not, at the interim stage, seek to
prejudge the matter, although it may, ‘ peek into the grounds of review raised in the main
review application and assess their strength’ .22 It is only if the court is convinced that the
review is likely to succeed that it may appropriately grant a temporary interdict. For
these reasons I consider that the trial court was correct that a ‘clear right’ has not been
established. By virtue of the conclusion that I have come to I sha ll assume, without
making a finding in that regard, that SNR has established a prima facie right to the relief
in the main application.
Harm
[15] That brings me to the question of harm. Once a prima facie right was
established SNR had to show a reasonable ap prehension of irreparable harm, if the
interim relief were refused and the ultimate relief granted. I have dealt earlier with the
nature of the tender and the contract with Coastal to the extent that it can be gleaned
from the papers before us. I have re corded that SNR has not established that, had the
contract been concluded with them, they would have enjoyed any entitlement to receive
maintenance or refurbishment work. Thus, I am bound to accept that they were
committed to perform such maintenance or re furbishment work as the Municipality may,
in its discretion, request from them from time to time. However, I am alive to the fact
in its discretion, request from them from time to time. However, I am alive to the fact
that SNR was not required to establish actual harm, a reasonable apprehension of harm
would suffice. I recognise that it is the Municipality’s case that it is unable to perform the
20 See Setlogelo at 225; and Boiler Efficiency Services CC v Coalcor (Cape)(Pty) Ltd and Others 1989 (3)
SA 460 (C) at 465I-J.
21 See Johan Meyer: Interdict and Related Orders at p. 67; Moroko Swallows Football Club Ltd v The
Birds Football Club and Others 1987 (2) SA 511 (W) at 521D-E.
22 Economic Freedom Fighters at para 42.
maintenance and refurbishment of its infrastructure that is required to provide water to
the community within its boundaries and, irrespective of what the terms of the tender
may be, the Municipality said that it had outsourced the day -to-day maintenance of its
water infrastructure to Coastal. Thus, in its own case the Municipality said that it would,
in the period before Part B is finalised, have to engage the successful tenderer to
perform maintenance work.
[16] Proceeding from this premise it was argued on behalf of SNR that, if the interim
interdict were not granted, the impugned contract may be implemented to finality,
thereby unavailing a substitution order as one of the remedies that will be availa ble to it.
Indeed, a refusal of a temporary interdict pending the finalisation of litigation is said to
be appealable, not on the grounds that its refusal will cause irreparable loss to the
applicant, but because the interdict is sought to preserve the su bject matter pending the
main suit. The refusal of such an interdict may ordinarily result in the plaintiff being
unable, if successful in the review, to obtain the relief it seeks. In other words, it will
preclude some of the relief which might have bee n granted at the hearing. 23 This will
ordinarily be so where an organ of state has awarded the tender for the supply of a
circumscribed consignment of goods, or the construction of defined works. Where, in
such an instance, a portion of the consignment o f goods is delivered before the review
proceedings are heard, or the works are partially constructed during this period, a
significant part of the original tender would no longer be available. The failure to issue
an interim interdict in such circumstances would necessarily give rise to harm.24
[17] This is not such a case. The tender is for maintenance and refurbishment work
that may arise, from time to time, over the period of three years, calculated from the
that may arise, from time to time, over the period of three years, calculated from the
date of the award. It is time bound. In the eve nt that the three-year period is calculated
from the date of the award to Coastal, the Municipality would, if the interdict is granted,
23 Davis v Press & Co. 1944 CPD 108.
24 SNR placed much reliance on the decisions in Marce’ Projects (Pty) Ltd and Others v City of
Johannesburg Metropolitan Municipality and Othe rs (2019/33291) [2021] ZAGPJHC 137 (29 March
2021); and Down Touch Investments (Pty) Ltd and Another v South African National Roads Agency SOC
Ltd and Another (2064/2020) [2020] ZAECGHC 120 (29 October 2020). These cases demonstrate the
principle.
be obliged, as best it can, to perform maintenance work that is required before the
finalisation of the review process i tself to give effect to its constitutional and legislative
mandate. SNR, if successful in the review, would then be bound, if called upon, to
perform such work for the remaining part of the contract period. A substitution order can
hold no benefit for S NR in respect of the portion of the contract period that has lapsed
before the finalisation of the review. I shall revert to this issue in considering the
balance of convenience. If, however, the three -year period is calculated from the date
of the award of the contract to SNR, as a result of a substitution order, its entitlement, to
the extent that there is any, will persist for a period of three years thereafter in respect of
all maintenance and refurbishment work arising during that period, as the Muni cipality
may assign to it. There is no evidence to suggest that there would be less maintenance
work during the three -year period commencing from the finalisation of the review, than
would be the case if the three -year period were calculated from the awar d of the
contract to Coastal. Accordingly, I consider that the trial judge correctly held that SNR
has not established a reasonable apprehension of irreparable harm if the interdict were
not granted, and the relief in Part B is obtained. Even if I err in the conclusion that I have
come to in respect of harm, Mr van Rhyn argued that the trial court ought, in any event,
to have refused the interdict on the ground that the balance of convenience favours the
refusal of the temporary interdict. I shall, accord ingly, consider the balance of
convenience, a matter that the trial court did not address.
Balance of convenience
[18] In assessing the balance of convenience, a court weighs up the likely prejudice
to an applicant if the interim relief is refused, and the refusal is later shown to have been
to an applicant if the interim relief is refused, and the refusal is later shown to have been
wrong, against the likely prejudice to the respondent if the interim interdict is granted
and the grant of the interdict is later shown to have been wrong.25
[19] As I have said, the Municipality is the water services authori ty and water services
provider for the city of George. The extent of the infrastructure is recorded earlier. The
25 See Shoprite Checkers Ltd v Blue Root Property Managers (Pty) Ltd and Others 1994 (2) SA 172 (C) at
184E; and Troskie en ‘n ander v Van der Walt 1994 (3) SA 545 (O) at 561C-D.
Municipality said that it constituted the critical water and sanitation infrastructure to
provide water services as a basic human right. Som e of the sewer pump stations are
situated within the catchment area and drain into the main drinking water source, being
the Garden Route Dam, and the wastewater treatment facilities discharge into critical
diverse river courses. Most of the infrastructur e subject to the tender is past its life
expectancy and requires daily maintenance as failures occur. A failure to attend to it
expeditiously may be catastrophic and result in sewer spillages, contamination, and
water outages, which may cause major health risks to the larger George community,
and visitors to George and the surrounding areas.
[20] The Municipality said that it feared that an interruption in these critical services
could result in the city of George coming to a standstill, with the potential f or public
unrest, vandalism and riots. Thus, they contended that the interruption in water supply,
even for a single day, could have catastrophic consequences for the Municipality’s
constitutional duty to provide critical services to, and the needs of, it s constituency. The
Municipality’s fears regarding potential public unrest, vandalism and riots are, in my
view, well-founded. These events have become regular occurrences in South Africa
where communities protest against service delivery failures, and t hey are a matter of
public record.
[21] The Constitution provides that everyone has the right to an environment that is
not harmful to their health or well -being and to have it protected through legislative and
other measures. 26 The National Environmental Mana gement Act, 107 of 1998, was
promulgated to give effect to the constitutional imperative. It defines the environment as
being made up of land, water, and the atmosphere of the earth, and imposes substantial
obligations on the Municipality concerning the c ontrol of incidents. A failure to comply
obligations on the Municipality concerning the c ontrol of incidents. A failure to comply
with the legislation constitutes offences punishable, in certain circumstances, with a fine
of up to R10 million.
26 Section 24 of the Constitution.
[22] The Constitution also confers on everyone the right to have access to water, and
it imposes on the state the obligation to pass reasonable legislative measures to
achieve the progressive realisation of these rights. 27 It is one of the objects of local
government circumscribed in the Constitution, to ensure the provision of services to its
community in a sustainable manner.28 In doing so, the Municipality is enjoined to give
priority to the basic needs of the local community, and to ensure that all members of the
community have access to at least the minimum level of basic municipal services, which
must be environmentally sus tainable.29 The Water Services Act, promulgated pursuant
to the provisions of s 27 of the Constitution, states that one of its main objects is to
provide for the right of access to basic water supply and the right to basic sanitation
necessary to secure s ufficient water, and an environment not harmful to human health
and well-being.30 As adumbrated earlier, the Municipality is the water services authority
in terms of the legislation. Accordingly, the obligation to provide clean drinking water and
to protect the environment are constitutional duties imposed on the Municipality for the
benefit of the people who live within its area.
[23] The tender constitutes a measure employed by the Municipality to discharge its
constitutional obligations and those imposed up on it by legislation. In National
Treasury31 the Constitutional Court noted that:
‘The Setlogelo test, as adapted by case law, continues to be a handy and ready guide to the
bench and practitioners alike in the grant of interdicts … .However, now the test must be applied
cognisant of the normative scheme and democratic principles that underpin our
Constitution. This means that when a court considers whether to grant an interim interdict it
must do so in a way that promotes the objects, spirit and purport of the Constitution.’
must do so in a way that promotes the objects, spirit and purport of the Constitution.’
[24] In AllPay (1)32 and AllPay (2)33 the Constitutional Court explained that:
27 Section 27 of the Constitution.
28 Section 152 of the Constitution.
29 Section 73 of the Local Government: Municipal Systems Act, 32 of 2000.
30 Section 2(a).
31 At para 45.
32 AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African
Social Security Agency, and Others 2014 (1) SA 604 (CC) at para 56.
‘Any contract that flows from the constitutional and statutory procurement framework is
concluded not on the state entity's behalf, but on the public's behalf. The interests of those most
closely associated with the benefits of that contract must be given due weight. Here it will be the
imperative interests of grant beneficiaries and particularly child grant recipients in an
uninterrupted grant system that will play a major role. The rights or expectations of an
unsuccessful bidder will have to be assessed in that context.’
[25] These remarks are of equal application in the present matter where the
Constitutional rights of citizens, and in particular vulnerable peopl e, to the uninterrupted
supply of clean drinking water and sanitation must play a major role in evaluating where
the balance of convenience rests. 34 In a case of this nature I am obliged to recognise
that I am invited by SNR to restrain the Municipality f rom effectively maintaining
essential infrastructure, which has the very real potential of interrupting basic municipal
services, which it is constitutionally obliged to provide. 35 By virtue of its Constitutional
obligation, if the interdict were to be gr anted, the Municipality would be obliged, to the
best of its ability, to attend to any maintenance and refurbishment that may be required
pending the hearing of the review, in -house. It cannot be interdicted from doing so
itself. If it succeeds in doing so, then, for the reasons set out earlier, there can be no
harm to SNR if the interdict is not granted. On the other hand, if it is unable to do so,
and it has said that it does not have the capacity to do so, the consequences for the
people of George, on whose behalf the contract with Coastal was concluded, may be
grave.
[26] Thus, as against the very substantial potential prejudice to the Municipality, and
to the people of George, there is, at best for SNR, a limited prospect of some financial
to the people of George, there is, at best for SNR, a limited prospect of some financial
prejudice. I co nsider that the balance of convenience is heavily in favour of the refusal
of the interim interdict.
33 AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Offic er, South African
Social Security Agency and Others 2014 (4) SA 179 (CC) at para 31.
34 National Treasury at para 46.
35 Section 152(1)(b) of the Constitution.
[27] Finally, and in any event, even where all the requirements for an interdict have
been established, the court has a discretion to refuse an interdict. 36 For all the reasons
set out above, I would have exercised my discretion against SNR in respect of Part A of
the notice of motion.
Costs
[28] Mr Nyangiwe argued that in the event that we dismiss the appeal there should be
no order as to costs. In support of this submission, he relies on the principle in
Biowatch37. Mr van Rhyn did not contend otherwise. It seems to me that the principle
does apply and I make no order for costs.
[29] In the result, the following order is made:
1. The appeal is dismissed.
J W EKSTEEN
JUDGE OF THE HIGH COURT
BROOKS J:
I agree.
R W N BROOKS
36 LAWSA, vol II at para 321.
37 Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC).
JUDGE OF THE HIGH COURT
RUSI J:
I agree.
L RUSI
JUDGE OF THE HIGH COURT
Appearances:
For Appellant: Adv X S Nyangiwe
Instructed by: Moletsane PN Attorneys Inc
c/o Shenxane Inc
MAKHANDA
For 1st Respondent: Adv G van Rhyn
Instructed by: Goussard Attorneys
c/o Nolte Smit Attorneys
MAKHANDA
Date Heard: 22 July 2025
Date Delivered: 23 September 2025