IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
In the matter of:
UBILO GENERAL TRADING CC
MVIKELI SECURITY (PTY) LTD
and
MATATIELE LOCAL MUNICIPALITY
SIBAKHULU TRADING (PTY) LTD
THE CHAIRPERSON OF THE INTERNAL BID
APPEALS TRIBUNAL
LIZO MATIWANE N.O.
THE COMMANDER OF THE SAPS MATATIELE
ORDER
The follow ing order is granted:
CASE NO: 13708/24P
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDEN T
FOURTH RESPONDEN T
FIFTH RESPONDENT
1. The application is dism issed w ith costs, such costs to include the costs of
counsel on scale B.
JUDGMENT
\ '0"
2
Pietersen AJ:
[1] This is an application for an order declaring the Matatiele Local Municipality ('the
Municipality') and the second and fourth respondents to be in contempt of the order
granted by this court on 27 September 2024. The applicants further seek consequential
orders, directing the fourth respondent, who is cited as the Municipality's accounting
officer, to immediately reverse his decision to appoint the second respondent as a
service provider to the Municipality and that the second respondent be ordered to
immediately vacate the Municipality's premises. The applicants also seek an interdict to
restrain the Municipality and the second and fourth respondents from continuing further
work in terms of the appointment of the second respondent as a provider of security
services to the Municipality.
[2] During 2024, the Municipality published an invitation for interested persons to
submit bids for the provision of security services to the Municipality. The applicants
formed a joint venture and submitted a bid in this joint capacity. In the subsequent
process of consideration and adjudication of the various bids, the applicants' bid was
disqualified on the basis that it failed to comply with the prescribed minimum
requirements of the tender.
[3] The Municipality decided to award the bid to the second respondent and
distributed its intention to award to unsuccessful candidates, including the applicants,
on 9 July 2024.
(4] The applicants objected to the award of the bid to the second respondent and
applied to this court for an interdict to prevent the implementation of the Municipality's
decision pending the objection process. The applicants' application for an urgent
interdict was unsuccessful as the court found that the applicants had failed to exhaust
all available internal remedies, which included an appeal procedure in terms of which
the applicants would have been provided with all relevant documents. A subsequent
the applicants would have been provided with all relevant documents. A subsequent
internal appeal by the applicants was also unsuccessful and the applicants subsequently
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instituted review proceedings in this court, challenging the award of the bid as well as
the appeal ruling in the internal appeal. The applicants' review application remains
pending in this court.
[5] Shortly after the applicants instituted the review proceedings, they also applied
to this court for an urgent interdict t to interdict the implementation of the award pending
the review proceedings. On 27 September 2024, Pitman AJ, as he then was , granted
an interim interdict in favour of the applicants. This order forms the subject-matter of the
present application and it reads as follows:
'1. The matter be heard as a matter of urgency in terms of Rule 6 (12) of the Uniform Rules
of Court and that the forms and services provided in Rule 6(5) be and is hereby dispensed with.
2. A rule nisi be and is hereby issued calling upon the First and Second Respondents ("the
respondents") and any other respondent who opposes this application to show cause, if any,
before this Court sitting at Pietermaritzburg on the 11th day of DECEMBER 2024, at 9h30 or so
soon thereafter as Counsel may be heard, why an order in the following terms should not be
granted:
1.1 interdicting and restraining the First Respondent from appointing or implementing the
appointment of the Second Respondent and/or giving effect to in any manner
whatsoever, the appointment of certain Respondents under Bid No .
MATAT/2023/2024/208 for the provision of security services to the First Respondent;
alternatively;
1.2 interdicting and restraining the First and Second Respondents from implementing and/or
continuing to implement the bid.
2.2 Interdicting and restraining the Second Respondent from carrying out any works and/or
continuing with any work in terms of the awa rd for the provision of security services
and/or any contracts which may have been concluded between the First and Second
Respondent.
2.3 Interdicting and restraining the Second Respondent from carrying out any work and/or
2.3 Interdicting and restraining the Second Respondent from carrying out any work and/or
continuing with any work in term of the award for the provision if security services and/or
any contracts which may have been concluded between the First and Second
Respondents;
2.4 Interdicting and restraining the First and Second Respondents from concluding any
contracts as a consequence of the award.
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2.5 Costs of the application.
3. Pending the finalisation of the review application, paragraph 2.1, 2.2, 2.3 and 2.4 shall
operate as an interim relief with immediate effect.'
[6] The Municipality was legally represented in the interdict proceedings and the
court order was granted in the presence of its legal representatives. The court order was
also properly served on the Municipality on 30 September 2024. The Municipality's
knowledge of the court order is not disputed before me .
[7] The applicants argued that the Municipality failed to comply with the order when
it issued a public notice on 30 September 2024 , advising the public that the newly
appointed security company would resume its operations in all municipal buildings as of
1 October 2024.
[8] The applicants' attorneys immediately addressed correspondence to the
Municipality's attorneys and insisted that the Municipality acted in breach of the court
order by appointing the service provider. The applicants' attorneys threatened to launch
a contempt of court application. The Municipality's attorneys responded on 1 October
2024 and advised that the court order only interdicted the Municipality from
implementing the award of the tender and that the Municipality's agreement with the first
applicant terminated by effluxion of time on 30 September 2024. The court order of 27
September 2024 did not renew or extend that contract. In the circumstances, the
Municipality had to procure security services on an emergency basis to safeguard its
property, staff and assets, pending the outcome of the litigation regarding the tender.
The procurement of the security services was therefore not pursuant to the tender, which
is the subject of the interdict. The Municipality, accordingly, disputed that it was in
contempt of the court order.
[9] The applicants proceeded to argue that the Municipality, as well as the second
and fourth respondents, deliberately disobeyed the court order and, notwithstanding the
and fourth respondents, deliberately disobeyed the court order and, notwithstanding the
applicants drawing the Municipality's attention to the matter, continued with such
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disobedience. The applicants further argued that the Municipality had the option of
extending the contract of the first applicant but failed to do so and its reliance on the
provisions provided in the Municipality's Supply Chain Management Policy ('SCM
Policy') to appoint the second respondent as a service provider was in contravention of
the court order.
[1 0] In opposition to the application, the Municipality pointed out that the court order
was an interim order in relation to an award made pertaining to the tender for a three
year contract for security services. The court order interdicted the Municipality from
making an appointment in terms of the award or from implementing the bid. The
Municipality indicated in its answering affidavit that it had not implemented the award of
the bid and did not make an appointment in terms of the award. The Municipality
therefore concluded that it was not in breach of the court order.
[11] The Municipality further explained in its answering affidavit that, in terms of
paragraph 36 of its SCM Policy and in accordance with reg 36 of the Municipal Supply
Chain Management Regulations, 1 promulgated under the Local Government: Municipal
Finance Management Act 56 of 2003, the Municipality is entitled to deviate from its
standard procurement process in situations of emergency and other exceptional
circumstances. The Municipality reasoned that it has become reasonable and necessary
for a paragraph 36 appointment to be made where the incumbent's security contract
terminated on 30 September 2024 and the Municipality cannot make an appointment in
terms of the bid which is the subject of the review and the court order interdicting an
award or implementation of the bid. As a result, the Municipality was entitled, in terms
of paragraph 36 of its SCM Policy, to appoint the second respondent as a service
provider, pending the resolution of the applicants' review application. The Municipality
provider, pending the resolution of the applicants' review application. The Municipality
further pointed out that the appointment of the second respondent under paragraph 36
of the SCM Policy does not affect the applicants' interests nor will the appointment affect
any rights of any party that may ultimately be appointed in terms of the bid which forms
the subject-matter of the pending review application.
1 M unicipal Supply Chain M anageme nt R egulations, GN 868, GG 27636 , 30 Ma y 2005.
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[12] To succeed in obtaining the relief sought, the applicants are required to prove the
requisites of contempt of court beyond reasonable doubt.2 The applicants must therefore
prove beyond reasonable doubt that the respondents have contravened the order and
that they have done so wilfully and with ma/a tides.
[13] The Supreme Court of Appeal held in Fakie:3
'(a) The civil contempt procedure is a valuable and important mechanism for securing
compliance with court orders, and survives constitutional scrutiny in the form of a motion
court application adapted to constitutional requirements.
(b) The respondent in such proceedings is not an "accused person", but is entitled to analogous
protections as are appropriate to motion proceedings.
(c) In particular, the applicant must prove the requisites of contempt (the order; service or
notice; non-compliance; and wilfulness and ma/a tides) beyond reasonable doubt.
(d) But, once the applicant has proved the order, service or notice, and non-compliance, the
respondent bears an evidential burden in relation to wilfulness and ma/a tides: Should the
respondent fail to advance evidence that establishes a reasonable doubt as to whether non
compliance was wilful and ma/a tide, contempt will have been established beyond reasonable
doubt.
(e) A declarator and other appropriate remedies remain available to a civil applicant on proof
on a balance of probabilities.'
[14] In Matjhabeng Local Municipality v Eskom Holdings Ltd and Others4 the
Constitutional Court held as follows:
'Summing up, on a reading of Fakie, Pheko, and Burchell, I am of the view that the standard of
proof must be applied in accordance with the purpose sought to be achieved, or differently put,
the consequences of the various remedies. As I understand it, the maintenance of a distinction
does have a practical significance: the civil contempt remedies of committal or a fine have
material consequences on an individual's freedom and security of the person. However , it is
material consequences on an individual's freedom and security of the person. However , it is
necessary in some instances because disregard of a court order not only deprives the other
2 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (Fakie) para 42.
3 Ibid.
4 M atjhabeng Local Municipality v Eskom Holdings Ltd and Others [2017) ZACC 35; 2018 (1) SA 1 (CC)
para 67.
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party of the benefit of the order but also impairs the effective administration of justice. There,
the criminal standard of proof - beyond reasonable doubt - applies always. A fitting exam ple
of this is Fakie. On the other hand, there are civil contempt remedies - for example,
declaratory relief, mandamus or a structural interdict - that do not have the consequence of
depriving an individual of their right to freedom and security of the person. A fitting example of
this is Burchell. Here, and I stress, the civil standard of proof - a balance of probabilities -
applies.'
[15] It has further been held by the Constitutional Court in Secretary, Judicial
Commission of Inquiry into allegations of State Capture v Zuma and Others5 that
contempt 'proceedings exist to protect the rule of law and the authority of the judiciary'.
The court also held that the overall damage caused to society by conduct that poses the
risk of rendering the judiciary ineffective and eventually powerless is at the very heart of
contempt of court.6 'There is thus a public interest element in each and every case in
which it is alleged that a party has wilfully and in bad faith ignored or otherwise failed to
comply with a court order.'7
[16] It is necessary that the element of wilfulness be present in the act or omission
alleged to constitute contempt of court.8 However , in addition to the element of
wilfulness, it must also be shown that the non-compliance with the court order was ma/a
fide.9
[17] It has been held in Mchunu and Others v Executive Mayor, Ethekwini Municipality
and Others10 that a Municipality is under a constitutional duty to comp ly with court orders
and to lead by example . If non-compliance with a court order is established, complaints
5 Secretary, Judicial Comm ission of Inquiry into a/legations of State Capture v Zum a and O thers [2021]
ZACC 18; 202 1 (5) S A 327 (CC ) para 27.
6 Ibid para 61.
7 Victoria P ark Ratepayers' Association v Greyvenouw CC and O thers [2004] 3 All SA 623 (SE ) pa ra 5.
8 Consolidated Fish Distributors (Pty) Ltd v Zive and Others 1968 (2) SA 517 (C ) at 522 B .
9 Clem ent v Clement 1961 (3) SA 861 (T ) at 866A.
10 M chunu and Others v Executive M ayor, E thekwini Mu nicipality and O thers 2013 (1) SA 555 (KZD ) para
16.
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of contempt may be proceeded with against the functionaries of the Municipality
concerned .11
[18] The Constitutional Court also held in Democratic Alliance (as Third Intervening
Party): In re Electoral Commission of South Africa v Minister of Co-operative
Governance and Traditional Affairs and others (African National Congress and others
as Intervening Parties and Council for the Advancement of the South African
Constitution and others as amici curiae)12 that '[t]he order with which a judgment
concludes has been described as the "executive part of the judgment", because it
defines what the court requires of the parties who are bound by it'. The Supreme Court
of Appeal held in HLB International (South Africa) (Pty) Ltd v MWRK Accountants and
Consultants (Pty) Ltd13 that
'The now well-established test on the interpretation of court orders is this:
"The starting point is to determine the manifest purpose of the order. In interpreting a
judgment or order, the court's intention is to be ascertained primarily from the language
of the judgment or order in accordance with the usual, well-known rules relating to the
interpretation of documents. As in the case of a document , the judgment or order and
the court's reasons for giving it must be read as a whole in order to ascertain its
intention."' (Footnote omitted.)
[19) The Constitutional Court held in Pheko and Others v Ekurhuleni City:14
'[1] The rule of law, a foundational value of the Constitution, requires that the dignity and
authority of the courts be upheld. This is crucial, as the capacity of the courts to carry out their
functions depends upon it. As the Constitution commands , orders and decisions issued by a
court bind all persons to whom and organs of state to which they apply, and no person or organ
of state may interfere, in any manner , with the functioning of the courts. It follows from this that
11 Kenton-on-Sea Ratepayers Association and O thers v Ndlambe Local Municipality and Others 2017 (2)
SA 86 (ECG) para 70.
SA 86 (ECG) para 70.
12 Democratic Alliance (as Third Intervening Party): In re Electoral Commission of South Africa v Minister
of Co-operative Governance and Traditional Affairs and others (African National Congress and others as
Intervening Parties and Council for the Advancement of the South African Constitution and others as amici
curiae) [2021] ZACC 30; 2022 (1) BCLR 1 (CC) para 12.
13 HLB International (South Africa) (Pty) Ltd v MWRK Accountants and Consultants (Pty) Ltd [2022]
ZASCA 52; 2022 (5) SA 373 (SCA) para 26.
14 Pheko and Others v Ekurhuleni City [2015] ZACC 1 0; 2015 (5) SA 600 (CC).
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disobedience towards court orders or decisions risks rendering our courts impotent and judicial
authority a mere mockery. The effectiveness of court orders or decisions is substantially
determined by the assurance that they will be enforced.
[2] Courts have the power to ensure that their decisions or orders are comp lied with by all and
sundry, including organs of state. In doing so, courts are not only giving effect to the rights of
the successful litigant but also and more importantly, by acting as guardians of the Constitution,
asserting their authority in the public interest.'
[20] Mr Sibeko, who appeared for the applicants, submitted that the court order was
clear and prevented the Municipality from appointing the second respondent. It was
further pointed out on behalf of the applicants that the only difference between the
implementation of the bid and the paragraph 36 appointment is the duration of the
appointment. The service provider, the scope of work, and the rate per month are the
same . Therefore, so the applicants concluded, if the review is not finalised in three years
for whatever reason, the three-month contract will keep on being renewed and the
second respondent would then enjoy the appointment outside of a competitive bidding
process.
[21] Mr Crampton , who appeared for the Municipality and other respondents,
submitted that the court order is an interdict against the performance and/or
implementation of the award made under the relevant bid. The interdict, therefore, does
not preclude an appointment or contract that was concluded outside of the relevant bid.
In the present case, so Mr Crampton argued, the appointment in question was made
under paragraph 36 of the SCM Policy, which permits procurement in emergency and/or
exceptional circumstances. The second respondent was thus appointed in terms of
paragraph 36, pending the finalisation of the applicants' dispute and review application.
paragraph 36, pending the finalisation of the applicants' dispute and review application.
It was further argued that the paragraph 36 appointment of the second respondent will
not affect the rights of any party that may ultimately be appointed to perform in terms of
the bid.
[22] The respondents submitted that their interpretation of the court order, being that
it does not preclude a paragraph 36 appointment of the second respondent, is a
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reasonable possibility and the appointment does not contravene the court order. The
respondents further argued that this interpretation is not only reasonably possible but is,
in fact, the only reasonable interpretation that accords with a clear meaning and
language of the order.
[23] As submitted by the respondents, each of the sub-paragraphs of the order
contains a reference to the bid and/or the award. Such references serve to limit the
application of the interdict to the bid and the award. In this regard, Mr Crampton
summarised the references in the court order as follows:
(a) In para 2.1, the respondents are interdicted from implementing or making an
appointment 'under bid no. MATAT/2923/024/208'.
(b) In para 2.2, the respondents are interdicted from 'implementing or continuing to
implement the bid'.
(c) In para 2.3 (which is identical to the second paragraph numbered 2.2), the second
respondent is interdicted from carrying out or continuing with any work 'in terms of the
award'.
(d) In the same subparagraph, the second respondent is interdicted from performing
under contracts that 'may have been concluded'. It was submitted that, in this regard,
the use of the past tense is instructive. This provision cannot be used, without an
alteration to the language, to interdict the future conclusion of contracts that may be
concluded outside the parameters of the bid.
(e) In paragraph 2.4, the first and second respondents are interdicted from
'concluding any contracts as a consequence of the award'.
[24] In my view, the language of the court order does not prevent the Municipality from
making an appointment in terms of its SCM Policy, as it did in respect of the second
respondent. The interpretation submitted on behalf of the applicants is therefore not only
unreasonable but simply not apparent from the court order.
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[25] The applicants' case for the interim order that was granted on 27 September 2024
is made out in their founding affidavit in the main application. The following is apparent
from that affidavit:
(a) The applicants applied for an interim interdict that, pending their review
application, would constitute a suspension of the decision or award.
(b) The applicants' locus standi in the interdict application was based on their
participation in the bidding process.
(c) The applicants claimed that they would suffer irreparable harm if an interim
interdict was not granted. This claim was based on their alleged prima facie right to be
awarded a contact in terms of the bid, which would be impaired or dismissed if the
respondents were allowed to proceed and implement the award of the bid.
(d) It was contemplated in the founding affidavit that the Municipality would be
entitled to contract for interim security services pending the review application. The
applicants relied on this argument in support of their case satisfying the balance of
convenience requirement for an interim interdict.
(e) The applicants duly alleged that the Municipality would be entitled to extend their
contract, as incumbent service providers. However , at no stage did the applicants allege
that they had a right to such an extension.
(f) The applicants further did not seek to make out a case for an interdict that would
curtail or limit the first respondent's rights in terms of paragraph 36 of the SCM Policy.
[26] I, therefore, conclude that the court order was intended to prevent a performance
of the award that would diminish the applicants' rights in the pending review application.
The court order did not intend to curtail any of the Municipality's rights in terms of
paragraph 36 of the SCM Policy and, therefore, did not preclude the appointment of the
second respondent in terms thereof.
[27] In the circumstances, neither the Municipality nor any of the other respondents
[27] In the circumstances, neither the Municipality nor any of the other respondents
acted in contravention of the court order when the Municipality appointed the second
respondent in terms of paragraph 36 of the SCM Policy.
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[28] The application mus t therefore fail. I am satisfied that costs should follow the
result and that the matter warranted the em ployment of junior counsel.
[29] I make the following order:
The application is dismissed with costs, such costs to include the costs of counsel on
scale B.
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PIETERSEN AJ
Date of hearing:
Date of judgment:
APPEARANCES
Applicants:
Instructed by:
First, Third and Fourth
Respondents:
Instructed by:
17 April 2025
12 December 2025
Mr V Sibeko
OM Plaakie Attorneys Inc.
Office 31
8 Station Road
Matatiele
c/o Tenza Attorneys
14 Stranack Street
Pietermaritzburg
Mr D P Crampton
Matthew Francis Inc.
Suite 4, 1st Floor, B lock A
21 Cascades Crescent
Montrose
Pietermaritzburg
Ref: Y Maharaj/KS/04M059005
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