IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: EL 940/2025
In the matter between
SNR ELECTRICAL CC APPLICANT
and
KING SABATA DALINDYEBO
MUNICIPALITY FIRST RESPONDENT
SIYA AND AYA ENGINEERING (PTY) LTD SECOND RESPONDENT
TIDOO ENGINEERING SERVICES THIRD RESPONDENT
ISANGQA SOMHLABA GROUP (PTY) LTD FOURTH RESPONDENT
VMMV PROJECTS AND TRADING (PTY) LTD FIFTH RESPONDENT
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
ROBERSON J:-
[1] This is an application for leave to appeal against a costs order. The
applicant was a bidder for a tender published by the first respondent. On 5
May 2025 the first respondent published a notice of intention to award the
tender to the second to fifth respondents. On 12 May 2025 the applicant
notified the first respondent that it lodged an objection to the decision and
asked for reasons for its rejection. On 15 May 2025 the first respondent
notified the applicant that it had decided to proceed in terms of SCM
Regulation 50 to address the objection. It did not provide reasons for the
exclusion of the applicant. On the same day the first respondent informed
the second to fifth respondents that it had received an objection, was
addressing the matter and would provide updates.
[2] The applicant launched an application on 22 May 2025 seeking to
interdict the respondents from concluding any contracts pursuant to the
tender or the implementation of contracts which had been concluded,
pending an application to review the decision. Other relief claimed was the
provision of the record of decision and reasons for the decision.
[3] On 23 May 2025 the first respondent sent an email to the applicant
and according to the first respondent also to the second to fifth
respondents, proposing an extension to the validity period of the tender,
saying that “this extension is necessary to ensure fairness and
transparency in accordance with the MFMA regulations” . The applicant
questioned the validity of the p roposal and put the first respondent on
terms to deliver its answering affidavit.
[4] The first respondent provided its reasons by letter dated 2 June 2025
and informed the applicant that it awaited the applicant’s supplemented
objection on receipt of w hich the objection would be considered and ruled
upon in terms of the relevant procurement prescripts. It also invited the
applicant to withdraw the application, which it said was in the
circumstances an abuse of process.
[5] Prior to the delivery of answering affidavits the second, third and fourth
respondents informed the applicant that the application was premature
because no award had been made. The first respondent’s answering
affidavit was delivered on 6 June 2025, in which it was stated, inter alia:
“The balance of convenience is clearly in favour of the Municipality,
pending a final decision on the Applicant’s objection. The
Municipality will not take further steps on the tender. It cannot. It is
compelled to deal with the objection by the re gulations and its
policy. ”
[6] The matter was heard on 10 June 2025. Following argument and the
submission of draft orders, I made an order striking the matter from the roll
and incorporating the first respondent’s undertaking not to make an award
and incorporating the first respondent’s undertaking not to make an award
until the objection procedure had been finalised. I reserved my decision on
costs. I ultimately ordered the applicant and the first respondent to pay
their own costs up to and including 6 June 2025, the date of delivery of the
answering affidavit in which th e first respondent undertook not to take
further steps in the tender. I ordered the applicant to pay the first
respondent’s costs after that date. I ordered the applicant to pay all the
costs of the second to fifth respondents.
[7] I am of the view th at there is no reasonable prospect that another
court would find that I did not exercise my discretion judicially in making
this costs order. With regard to the applicant and the first respondent, I
took into account their respective conduct up to the tim e of the answering
affidavit and struck a balance between such conduct. I took into account
further the clear undertaking in the first respondent’s answering affidavit
not to proceed with the tender pending the objection procedure. With
regard to the second to fifth respondents I took into account that they were
obliged to come to court to oppose the application, even though they had
warned the applicant that the application was premature, and they played
no part in the interaction between the applicant and the first respondent.
[8] The so -called Biowatch principle was not raised when the matter was
heard on 10 June 2025. However it is a ground of appeal. In South African
Riding for the Disabled Association v Regional Land Claims Commission,
Western C ape and Others [2025] ZACC 25 (13 November 2025) the
following was stated at paragraph [36] (footnotes omitted):
“The Biowatch principle provides that costs should not be ordered
against a party where a party seeks to enforce fundamental
constitutional rig hts against the state. The important reason
underpinning this principle is that “one should be cautious in
awarding costs against litigants who seek to enforce their
constitutional right against the state . . . lest such orders have an
unduly inhibiting or ‘chilling’ effect on other potential litigants in this
category” . Thus, in constitutional litigation against the state, even an
category” . Thus, in constitutional litigation against the state, even an
unsuccessful private litigant is spared costs, unless the application
is frivolous or vexatious. The application of the Biowat ch principle is
not unqualified. If the application is frivolous or vexatious, or in any
other way manifestly inappropriate, it will be treated as an ordinary
civil case. ”
[9] It is so that in the application the applicant was seeking to enforce its
right to just administrative action. Nonetheless I consider the manner in
which the application was ultimately conducted was at least “manifestly
inappropriate” . The applicant initiated the objection procedure. The first
respondent acknowledged that it was obliged to conduct the objection
procedure and undertook not to proceed further pending this prescribed
procedure. In the face of this acknowledgement the applicant persisted
with the application, even though no award had been made. The applicant
even sought to ask for different relief, namely that the court could interdict
the processing of the tender at that stage. When it was pointed out that the
first respondent had given its undertaking not to proceed pending the
objection procedure it was submitte d on behalf of the applicant that this
undertaking was insufficient protection and, as I understood the argument,
the applicant wanted an undertaking that no further steps should be taken
pending the review. In my view the applicant could not demand an
undertaking other than the one which had been given. The first respondent
was entitled not to give such an undertaking which involved the merits of
interim relief pending the review. The outcome of the objection procedure
was unknown at that stage. In all these circumstances I am of the view that
the applicant did not enjoy the protection of the Biowatch principle.
[10] The first respondent opposed the application for leave to appeal and
the second to fifth respondents abided the decision of the court. Insofar as
two counsel appeared for the first respondent, the matter did not warrant
the costs of two counsel and such costs were not sought. Argument was
not complex and costs on scale A will suffice.
[11] The following order will issue:
[11.1] The application for leave to appeal is dismissed.
[11.2] The applicant is to pay the first respondent’s costs on scale A.
[11.2] The applicant is to pay the first respondent’s costs on scale A.
___________________________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances
Applicant: Adv X S Nyangiwe, instructed by Dhushu & Majebe Attorneys
Inc, East London, email admin@dmlaw.co.za.
First respondent: Adv T G Madonsela SC with Adv M Nombewu, instructed
by Mvuzo Notyesi Inc, c/o Malusi & Company, East London, email
mnotyesi@telkomsa.net.
Second and fifth respondents: Mr T Mju lelwa, Mjulelwa Inc, East London,
email mjulelwainc@gmail.com.
Date heard: 3 December 2025
Date delivered: The judgment was delivered electronically by email to the
parties’ attorneys and the date and time for delivery is deemed to be
Tuesday 27 January 2026 at 11h00.