Brief Summary

Administrative Law — Review of administrative action — Applicants sought to review Eskom's decision to appoint other security service providers after their tender was set aside. The court dismissed the application, ruling that the applicants failed to oppose the initial review and did not demonstrate a legal right to the tender. The court emphasized the importance of procedural compliance in administrative processes.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an urgent application in the High Court (Western Cape Division, Cape Town) in which the applicants sought declaratory, review, and interdictory relief primarily under section 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), with further reliance on section 172(1)(b) of the Constitution and section 8(1) of PAJA for remedial relief.

The first applicant was Prime African Security (Pty) Ltd. During the hearing, TDP Enterprise (Pty) Ltd sought leave to intervene as a second applicant (having originally been cited as the eighth respondent), contending it had a direct and substantial interest and sought substantially the same relief. The first respondent was Eskom Holdings SOC Ltd. A number of security service providers and individuals were cited as further respondents; however, only Eskom (first respondent), Eden Security Services CC (second respondent), Ngova Trading (Pty) Ltd (fifth respondent), and two Eskom officials (sixth and seventh respondents) opposed the application (with one respondent indicating it would abide).

The application formed part of a broader sequence of litigation arising from Eskom’s procurement of security services in the Cape Coastal Cluster. The procedural history included an earlier review application in which a prior tender award and contracts were set aside by Thulare J (the “2024 order”), followed by a subsequent application by the first applicant dismissed with punitive costs by Nziweni J in July 2025 (with leave to appeal later refused). The present proceedings were characterised by the court as the third application brought on essentially the same factual matrix. Only Part A of the present application fell to be determined.

The general subject-matter of the dispute was public procurement and interim contracting for security services at Eskom sites, including whether Eskom’s conduct in implementing an “urgent procurement process” pursuant to the 2024 order was lawful, and whether Eskom’s alleged failure to act on an internal recommendation was reviewable under PAJA.

2. Material Facts

Eskom issued an invitation to tender on 6 December 2023 for the provision of physical security guarding and patrol services in the Cape Coastal Cluster (Tender Reference WC1159ZM). After evaluation, four bidders were selected as successful, including the two applicants. Contracts commenced on 1 June 2024, intended to run for 36 months.

After award of the tender, Eden Security Services CC launched review proceedings under case number 11619/2024 to set aside tender WC1159ZM. The review included allegations that the applicants had misrepresented their BEE status and that the procurement was tainted by irregularities, including serious allegations of fraud and corruption. The applicants were joined but did not oppose that review, did not file affidavits disputing the allegations, and did not participate in the hearing or in discussions about remedial timelines.

On 12 September 2024 the court granted an order (with reasons delivered on 7 October 2024) setting aside the tender and resultant contracts and remitting the matter for readvertisement, while requiring Eskom to implement an urgent procurement process for interim services (the “2024 order”). In October 2024 Eskom sought and obtained an extension of certain deadlines, with the implementation date extended to 25 November 2024.

In May 2025, the first applicant launched a further urgent application (case number 2025-070166) seeking, in Part A, contempt-type relief and amendment of the 2024 order, and in Part B, review relief aimed at setting aside Eskom’s emergency/urgent procurement decisions and termination of the applicant’s contract. Nziweni J dismissed the Part A relief with punitive costs on 25 July 2025, holding that the interdictory relief sought would undermine compliance with the 2024 order. An application for leave to appeal was later dismissed.

In the present application (described in the judgment as the third review application), the applicants contended that Eskom had, in October 2024, generated an internal recommendation indicating that the applicants should be appointed for interim services from 26 October 2024 to 26 October 2025, and that Eskom unlawfully failed to take a decision on this recommendation. The applicants asserted that they only became aware of this internal recommendation upon receipt of the Rule 53 record in June 2025. They further contended that Eskom’s subsequent urgent procurement process, and the appointment of other providers after 25 November 2024, were unlawful because Eskom allegedly lacked authority to conduct such urgent procurement after the deadline in the 2024 order.

Eskom’s position (supported by the opposing service providers) was that the 2024 order definitively set aside the tender and contracts; that the internal “recommendation” was not an approved decision and conferred no enforceable rights; and that the applicants’ attempt to obtain reinstatement or appointment was an impermissible attempt to undermine final court orders. It was also common cause on the papers that by mid-2025 Eskom had implemented an urgent procurement process and appointed providers (including Eden, Ngova, and Alert Patrol), who commenced services on Eskom sites, with Eskom ceasing payment to the applicants after 31 July 2025.

3. Legal Issues

The central legal questions the court identified included whether the matter was urgent within the meaning of Rule 6(12); whether the matter was barred by lis pendens and/or res judicata in light of the pending Part B in the 2025 proceedings and the prior determinations; whether Eskom’s alleged failure to decide on an internal recommendation was reviewable under section 6(2)(g) of PAJA; whether Eskom’s appointment of interim service providers pursuant to the urgent procurement process should be reviewed and set aside; and whether the court should grant substitutionary relief under section 8(1) of PAJA read with section 172(1)(b) of the Constitution by appointing the applicants as service providers.

The dispute turned primarily on application of law to fact: the legal consequences of a prior order setting aside a tender and contracts; the scope of reviewability under PAJA for an alleged failure to decide; the legal character of an internal recommendation within a procurement process; and whether it was permissible (procedurally and substantively) to pursue the relief by way of a further urgent application rather than by supplementing the pending review under Rule 53(4).

The court’s reasoning also involved value-laden evaluative judgments, especially regarding urgency, duplication of proceedings, abuse of process, the appropriateness of interim interdictory relief against an organ of state in procurement matters, and the just-and-equitable remedial discretion under constitutional and PAJA provisions.

4. Court’s Reasoning

On the preliminary issue of intervention, the court applied the established direct and substantial interest test. Relying on Constitutional Court authority, it held that TDP Enterprise had a sufficient legal interest because it sought the same relief arising from the same impugned procurement conduct and would be affected by the outcome. The court therefore granted leave to intervene as second applicant.

On urgency, the court applied the test articulated in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others, namely whether the applicant could obtain substantial redress in due course if the matter followed ordinary rules. The court held the applicants had not established facts showing they would lack substantial redress later, particularly given the existence of a pending Part B review in the 2025 proceedings where substantially similar relief was sought. The court rejected the contention that the “nature of tender challenges” automatically creates urgency and emphasised that urgency depends on proof of prejudice and lack of substantial redress in due course. It also reasoned that the relief sought (appointment for 12 months from a court-determined date) was not inherently time-bound in a way that required immediate adjudication.

Although the court indicated the matter would ordinarily be struck for lack of urgency, it proceeded to address other issues for completeness, referencing Constitutional Court guidance that it may be appropriate to ventilate the remaining disputes.

On lis pendens, the court applied the principle that parallel proceedings between the same parties involving the same subject matter and cause of action are prima facie vexatious and risk conflicting judgments. It compared the relief sought in the present application with the relief sought in Part B of the 2025 application and found that the applicants were, in substance, seeking the same relief in both matters. The court stressed that, if the applicants discovered new information in the Rule 53 record, the appropriate procedural course was to invoke Rule 53(4) to amend and supplement the pending review, rather than instituting new parallel proceedings. On this basis, the court held the lis pendens point was well-founded.

Turning to the argument that Eskom’s failure to complete and implement the urgent procurement process by the stipulated time rendered later steps unlawful, the court rejected the applicants’ contention that the 2024 order preserved their contracts until lawful replacement contracts were implemented. It emphasised the ordinary legal effect of a decision being reviewed and set aside, namely that it is treated as though it never existed and is retrospectively invalid absent an order to the contrary. The court relied on authority to the effect that acts dependent on an invalidated administrative decision lack a lawful foundation once that decision is set aside.

The court considered the applicants’ attempt to frame Eskom’s later procurement activity as unlawful for occurring after the deadline. It noted that Eskom had obtained an extension order moving the effective implementation deadline to 25 November 2024, and that in the earlier proceedings Nziweni J had already considered and rejected the contention that Eskom’s conduct amounted to non-compliance, finding substantial compliance and absence of bad faith. The court treated the re-advancement of this contention as impermissible relitigation and found the issues had, in substance, already been determined.

In relation to the alleged review ground under section 6(2)(g) of PAJA (failure to take a decision), the court analysed the statutory structure, emphasising that such a review requires that the administrator has a duty to take a decision and has failed to do so, and that the remedy typically is an order directing the taking of a decision. The court held that section 6(2)(g) is aimed at inordinate delay or complete absence of decision where a decision is due, rather than the failure to adopt an earlier internal proposal when a later decision has in fact been made appointing others. It reasoned that Eskom had in substance decided not to appoint the applicants and had instead appointed the opposing service providers; the applicants’ complaint should therefore, if anything, have been directed at the decision actually taken, not framed as a failure to decide on a non-binding internal recommendation.

The court further held that the internal recommendation relied upon by the applicants did not constitute administrative action because it did not have a direct, external legal effect and was not final. It accepted Eskom’s evidence that the recommendation required higher-level approvals which were not obtained and that it was directed to internal structures for consideration. The court applied the principle that purely internal steps in administrative processes do not amount to reviewable administrative action unless they produce external legal effect. In addition, the court accepted Eskom’s explanation that the recommendation proceeded from a mistaken assumption about the continued existence of the earlier contracts (already set aside), and that the fact it was not endorsed indicated it was not adopted.

On the request for substitutionary or appointment relief under section 8(1) of PAJA and section 172(1)(b) of the Constitution, the court held that these remedial provisions did not assist the applicants on the facts. It emphasised that the applicants’ original contracts had been set aside in binding litigation which they did not oppose and had not overturned on appeal, review, or rescission. The court reasoned that appointing the applicants would effectively subvert the 2024 order and would cause disruption and financial cost because interim providers were already rendering services.

Finally, on the alternative interdictory relief, the court applied the conventional requirements for an interim interdict and found that the applicants lacked a prima facie right, because their tender and contracts had been set aside and the internal recommendation created no enforceable entitlement. It also relied on Constitutional Court guidance cautioning against interdicts that interfere with public procurement decisions and powers, stressing that interdicts are aimed at preventing future conduct rather than reversing decisions already implemented. Given that interim providers had already been appointed and had commenced performance, the court held an interdict was ill-suited and that the balance of convenience favoured the respondents. It further held that the applicants had an alternative remedy via the pending Part B proceedings and the ability to supplement under Rule 53(4).

On costs, the court exercised its discretion in light of the duplication of proceedings, the burden placed on respondents, and the court’s view that the application amounted to an abuse of process and an attempt to relitigate issues already decided. It granted punitive costs against the applicants.

5. Outcome and Relief

The court dismissed the applicants’ application. It ordered the applicants to pay the costs of the application to the opposing respondents (identified as the first, second, and fifth respondents) jointly and severally, on an attorney and client scale, including the costs of two counsel where employed.

Although not reflected in the final formal order reproduced at the outset, the judgment’s reasoning upheld the intervention application, granting TDP Enterprise leave to intervene as second applicant before disposing of the merits by dismissal.

Cases Cited

SA Riding for the Disabled Association v Regional Land Claims Commissioner and Others 2017 (5) SA 1 (CC).

Provincial Government Northwest and Another v Tsoga Developers CC and Others 2016 (5) BCLR 687 (CC).

East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011).

S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 652 (CC).

Minister of Justice and Another v SA Restructuring and Insolvency Practitioners Association and Others 2017 (3) SA 95 (SCA).

H R Holfeld (Africa) Ltd v Karl Walter & Co GmbH (1) 1987 (4) SA 850 (W).

Nestlé (South Africa) (Pty) Ltd v Mars Incorporated [2001] 4 All SA 315 (SCA).

Guthmann & Wittenauer GmbH v Continental Jewellery Manufacturers 1993 (3) SA 76 (C).

Painter v Strauss 1951 (3) SA 307 (O).

Fizik Investments (Pty) Ltd t/a Umkhombe Security Services v Nelson Mandela Metropolitan University 2009 (5) SA 441 (SE).

Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A).

Pikoli v President of the Republic of South Africa and Others 2010 (1) SA 400 (GNP).

National Energy Regulator of South Africa v PG Group (Pty) Ltd 2020 (1) SA 450 (CC).

Seale v Van Rooyen NO and Others 2008 (4) SA 43 (SCA).

City of Johannesburg v Ad Outpost (Pty) Ltd and Others 2012 (4) SA 325 (SCA).

Black Sash Trust v Minister of Social Development and Others 2018 (12) BCLR 1472 (CC).

Natal Joint Municipal Pension Fund v Endumeni Municipality 2014 (2) SA 494 (SCA).

Thusi v Minister of Home Affairs and Others; 71 Other Cases 2011 (2) SA 561 (KZP).

Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2004 (3) All SA 446 (C).

South African Police Union v The National Commissioner of the South African Police Service (2005) 26 ILJ 2403 (LC).

Electoral Commission v Mhlope and Others 2016 (5) SA 1 (CC).

Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D).

Pietermaritzburg City Council v Local Road Transportation Board 1959 (2) SA 758 (N).

National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC).

Air France-KLM SA and Another v SAA Technical SOC Ltd (52406/2016) [2016] ZAGPPHC 877 (23 September 2016).

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2) SA 621 (CC).

Motaung v Makubela and Another, NNO; Motaung v Mothiba NO 1975 (1) SA 618 (O).

Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA).

Prime African Security (Pty) Ltd v Eskom Holdings SOC Ltd and Others (2025/070166) [2025] ZAWCHC 306 (25 July 2025).

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000.

Constitution of the Republic of South Africa, 1996.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Uniform Rules of Court, Rule 53(4).

Held

The court held that the application was not urgent because the applicants failed to show that they could not obtain substantial redress in due course, particularly given that substantially similar relief remained available in the pending Part B proceedings and could be supplemented under Rule 53(4).

The court held that the matter amounted to an impermissible duplication of proceedings and that the point of lis pendens was well-founded, because the present application sought substantially the same relief as Part B of the earlier (pending) review proceedings, raising the risk of conflicting judgments and constituting prima facie vexatious litigation.

The court held that the applicants’ contention that the 2024 order preserved their contracts until replacement service providers were appointed was incorrect. The setting aside of the tender and contracts meant those contracts had no legal validity, absent a contrary order, and the applicants could not claim entitlement to continue benefiting from them.

The court held that the internal procurement “recommendation” relied upon by the applicants was not a final, externally operative decision and therefore did not confer enforceable rights and did not constitute administrative action with direct external legal effect for purposes of PAJA. The alleged “failure to decide” on that recommendation did not found review relief under section 6(2)(g) of PAJA on the facts of the case, particularly since Eskom had ultimately appointed other providers.

The court held that it would not be just and equitable to appoint the applicants as service providers under section 172(1)(b) of the Constitution read with section 8(1) of PAJA, as that would effectively subvert the binding 2024 order and disrupt existing service arrangements implemented pursuant to the urgent procurement process.

The court held that the applicants did not satisfy the requirements for interdictory relief, including the existence of a prima facie right, and that interdicting conduct already implemented in public procurement was in any event inconsistent with the principles articulated in National Treasury and Others v Opposition to Urban Tolling Alliance and Others.

LEGAL PRINCIPLES

A party seeking urgent relief under Rule 6(12) must demonstrate, on facts, that it cannot obtain substantial redress in due course if the matter follows ordinary procedures; the mere nature of the relief (including procurement-related relief) does not itself establish urgency.

The doctrine of lis pendens prevents the duplication of substantially the same proceedings between the same parties on the same cause of action and subject matter, because parallel litigation is prima facie vexatious and creates a risk of inconsistent judgments; where a Rule 53 record reveals further grounds, the appropriate course is ordinarily supplementation under Rule 53(4).

When a tender award and resultant contracts are reviewed and set aside, the ordinary consequence is that they are treated as null and void (retrospectively invalid) in the absence of a contrary remedial order; a party cannot rely on such set-aside contracts to claim continuing entitlement.

Review for failure to take a decision under section 6(2)(g) of PAJA, read with section 6(3) and section 8(2), is directed at circumstances where an administrator has a duty to decide and has failed to do so; it is not ordinarily a mechanism to enforce the adoption of a non-binding internal recommendation where an administrator has in fact proceeded to make and implement a different appointment decision.

For a step in an administrative process to constitute administrative action reviewable under PAJA, it must have a direct, external legal effect and sufficient finality; internal recommendations within an institution’s decision-making hierarchy, not adopted by authorised structures, generally lack such external legal effect.

The remedial discretion under section 172(1)(b) of the Constitution and section 8(1) of PAJA must be exercised consistently with legality and the finality of court orders; it is not a vehicle to restore benefits under contracts previously set aside, particularly where doing so would undermine existing binding court orders and cause disruption.

Interdictory relief in public procurement matters must be approached with caution, especially where the impugned decision has already been implemented; courts must consider separation-of-powers concerns and the practical consequences for public administration and resource allocation, as emphasised in National Treasury and Others v Opposition to Urban Tolling Alliance and Others.

Prime African Security (Pty) Ltd and Another v Eskom Holdings SOC Ltd and Others (2025/146673) [2026] ZAWCHC 15 (23 January 2026)