2
METSICHEM INTERNATIONAL (PTY) LTD 9th Respondent
WETSPEC (PTY) LTD 10th Respondent
JUDGMENT
MODIBA, J
[1] This application is delineated in two parts, A and B. In Part A, Maano Chemicals
(Pty) Ltd (Maano) as the applicant seeks an order interdicting Rand Water SOC
Ltd as the first respondent (Rand Water) from implementing a tender awarded to
Afro-Zonke Projects (Pty) Ltd (Afro -Zonke) as the second respondent (the
tender), pending the determination of Part B of the application. In Part A, Maano
also seeks an order setting aside Rand Water’s cancellation of and reinstating
the month -to-month contract that was concluded between Rand Water and
Maano. It also seeks other ancillary relief. In Part B, Maano seeks to review and
set aside the tender. It relies on several grounds of review. Shortly, I will
elaborate on the grounds of review that Maano relied on in this application.
[2] Before me is Part A of the application. Rand Water and Afro -Zonke (the
respondents) oppose the application on largely the same grounds. They seek
its dismissal. Rand Water has also raised several points in limine.
[3] Maano initially brought the application on an urgent basis. It was on the urgent
roll of 18 February 2025. Although it was removed from the urgent roll by
agreement between the parties, the removal was proposed by Maano. Its
founding papers were voluminous , and it appears that it had not afforded the
respondents reasonable time to file their opposing papers. It subsequently
approached the Deputy Judge President for the application to be specially
allocated. It is unclear when the approach was made and how the request was
formulated. I deduce from the papers that the request for special enrolment must
have been made promptly because the application was ready for hearing in the
second week of March 2025 as the parties had exchanged practice notes and
heads of arguments.
3
[4] However, it appears that the application was specially allocated in the ordinary
course as it is only being accommodated on the special motion court roll almost
a year later. It is unclear why it was not treated as a semi -urgent application.
None of the parties could provide clarity on this. Be that as it may, Maano rightly
did not persist with the urgent relief because the alleged urgency of the
application was diffused by its allocation in the ordinary course. What remains to
be determined in respect of t he urgent relief is the wasted costs occasioned by
the removal of the application from the roll of 18 February 2025.
[5] The background facts are largely common cause. On 31 October 2022, Rand
Water invited bids for the tender described as Tender RW1039809022. It sought
to procure disinfection chemicals for its various facilities for a period of five years.
The closing date for bids was 28 November 2022. Maano, Afro -Zonke and 14
other bidders submitted bids. The bid made provision for a 180 -day validity
period. Rand Water did not adjudicate the bid during th is period. As a result, it
extended the bid validity period several t imes. Maano and Afro -Zonke were
among the six shortlisted bidders. Ultimately the bid was awarded to Afro-Zonke
in November 2024. It accepted the award during December 2024. On 6 January
2025, Rand Water published the award on the National Treasury website. Maano
brought this application on 28 January 2025.
[6] This is not the first application that Maano brings in respect of the tender. In or
about July 2023, Maano brought an urgent application for an order directing
Rand Water to finalize the adjudication of the bids. The application was struck
off the roll with costs on the attorney and client scale. Rand Water has
conveniently styled this application Maano I. I adopt the same nomenclature. In
the second application, conveniently styled Maano II, amongst other relief,
Maano sought to compel Rand Water to use a volume-based method to evaluate
Maano sought to compel Rand Water to use a volume-based method to evaluate
pricing for the tender. Maano II culminated in an order and judgment of
Goedhardt AJ on 6 August 2024 . She dismissed Part A of Maano . She found
that Maano failed to establish exceptional circumstances for the Court to intrude
into the powers of the executive to procure goods on behalf of the State by way
of an interim interdict. Part B of Maano II is still pending. There, Maano seeks an
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order reviewing and setting aside the same tender it seeks to review and set
aside in Part B of the present application.
[7] Rand Water’s first point in limine is that of non -joinder of other bidders. These
are bidders who, like Maano were unsuccessful. The test for non-joinder is trite.
The joinder of a party is necessary if that party has a direct and substantial
interest that may be prejudicially affected by the Court’s judgment in the
proceedings in which the proposed respondents are sought to be joined. 1 The
substantial interest of the unsuccessful bidders in the relief Maano seeks in Part
A was not established. Therefore, the test for non-joinder is not met.
[8] The second point in limine is that of lis pendens. It relates to Part B of Maano II.
From Maano’s submissions in response to this point in limine, it does not appear
that it intends pursuing Part II of Maano B. However, it has not withdrawn it. In
that application, Maano seeks the same relief it seeks in Part B of this application.
It relies on grounds similar to some of those it raises in this application. Its
argument that it did not pursue Part B of Maano II because Goedhart AJ found
that Part A was brought pre-maturely as the tender had not been final ised; and
that it brings the present application to raise all the issues that arise as the tender
has since been finalized , is unpersuasive. Nothing prevented Maano from
amending the notice of motion and filing supplementary affidavits to raise the
additional grounds it raises in the present application and to seek the relief it
seeks in Part A. Rand Water’s list pendens point in limine stands to succeed and
for this reason alone, the present application falls to be dismissed. However, I
proceed to determine other issues that arise in Part A of the present application
as they were ventilated before me.2
[9] This is the appropriate point to set out the applicable legal principles for interim
relief. They are traced back to the well -known 1914 case of Setlogelo v
relief. They are traced back to the well -known 1914 case of Setlogelo v
Setlogelo3 and have become trite. They are, the existence of a prima facie right
1 Johannesburg Society of Advocates v Nthai 2021 (2) SA 343 (SCA) at [31].
2 Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others
2012 (3) SA 486 (SCA) ([2012] 2 All SA 345; 2012 (6) BCLR 613; [2012] ZASCA 15) para 49;
Louis Pasteur Holdings (Pty) Ltd and Others v ABSA Bank Ltd and Others 2019 (3) SA 97 (SCA)
para 33; Theron and Another NNO v Loubser NO and Others 2014 (3) SA 323 (SCA) para 21.
3 Setlogelo v Setlogelo 1914 AD 221.
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(even though open to doubt4), a well-grounded apprehension of irreparable harm
if the interim relief is not granted (and the ultimate relief is granted), the balance
of convenience favours the granting of the interdict and the absence of a suitable
alternative remedy.
[10] In determining whether the applicant has satisfied the requirements for interim
relief, I am also guided by the nuanced approach to this exercise articulated by
Holmes J in Olympic Passenger Services (Pty) Ltd v Ramlagan5 where the court
stated as follows:
“It thus appears that where the applicant’s right is clear, and the other
requisites are present, no difficulty presents itself about granting an
interdict. At the other end of the scale, where his prospects of ultimate
success are nil, obviously the cour t will refuse an interdict. Between
these two extremes falls the intermediate cases in which, on the papers,
the applicant’s prospects of ultimate success may range all the way from
strong to weak.
The expression ‘prima facie established though open to some doubt’
seems to me a brilliantly apt classification of these cases. In such cases,
upon the proof of a well-grounded apprehension of irreparable harm, and
there being no ordinary alternative reme dy, the court may grant an
interdict.
It has a discretion, to be exercised judicially upon a consideration of all
the facts. Usually this will resolve itself into a nice consideration of all
the prospects of success and the balance of convenience. The stronger
the prospects of success, the less need for such a balance to favour the
applicant: the weaker the prospects of success, the greater the need for
the balance of convenience to favour him.
4 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189.
5 Olympic Passenger Services (Pty) Ltd v Ramlagan 1957 (2) SA 382 C – G.
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I need hardly add that by balance of convenience is meant the prejudice
to the applicant if the interdict be refused, weighed against the prejudice
to the respondent if it be granted.”
[11] Lastly, I draw from the Constitutional Court judgment in OUTA6 where the apex
court guides judicial officers on how to apply the Setlogelo test for interim
interdicts cognisant of constitutional principles. From that judgment, I distil the
following principles: when exercising its discretion to grant an interim inter dict,
the Court must do so in a way that promotes the objects, spirit and purport of the
Constitution. If a constitutional right is implicated, it is not necessary to enquire
into whether the right exists. When weighing up where the balance of
convenience lies, the court ought to consider the probable impact of the interim
interdict on the constitutional and statutory powers and duties of the organ of
state against which the interim order is sought. The balance of convenience
enquiry must determine the exte nt to which the restraining order might intrude
into the powers of another arm of State. Intrusion into the terrain of another arm
of State is only justified (a) in the clearest of cases, (b) after a careful
consideration of the extent of the intrusion and (c) should serve to prevent the
alleged breach of the implicated constitutional right.
[12] I also draw from the Economic Freedom Fighters v Gordhan and Others; Public
Protector and Another v Gordhan and Others 7 where the Constitutional Court
applied the OUTA principle. It enjoined courts to carefully scrutinise whether
granting an interdict will disrupt executive or legislative functions, thus implicating
the separation and distribution of powers as envisaged by law.
[13] The right which Maano seeks to protect by way of an interim interdict is the right
to supply goods to the state in accordance with a system which is fair, equitable,
transparent, competitive and cost-effective.8 This right is provided for in s 217 of
transparent, competitive and cost-effective.8 This right is provided for in s 217 of
the Constitution.9 The principle in OUTA that the Court does not need to enquire
into the existence of the right does not apply as the right Maano seeks protected
6 Organisation Undoing Tax Abuse v Minister of Transport and Others 2024 (1) SA 21 (CC).
7 Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan
and Others 2020 (6) SA 325 (CC), [2020] ZACC 10, 2020 (8) BCLR 916 (CC).
8 Marce Projects (Pty) Ltd v City of Johannesburg Metropolitan Municipality 2021 JDR 1914 (GJ).
9 Act 108 of 1996.
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is not entrenched in the Bill of Rights. It is therefore necessary to enquire into the
nature of the right Maano seeks to protect. The grounds of review relied on by
Maano are relevant in this enquiry as Maano relies on them in its contention that
its rights in terms of s 217 of the Constitution are under threat. At this stage, all
it needs to demonstrate is that it enjoys prospects of success in establishing its
grounds of review in Part B.
[14] Although, as already mentioned, in Part B, Maano relies on several grounds of
review, it elected not to rely on all of them for the purpose of Part A and took the
view that most of the grounds would only be relevant to Part B. Maano stands to
succeed or fail on this election. Below I only set out the grounds that are relevant
to this judgment.
[15] The first ground of review is that the tender box was vandalized, and the bid
documents were disturbed. Rand Water had advised Manno that it intended
cancelling the bid as its integrity was impeached by the vandalization of the
tender box. However, further contended Maano, in the end, Rand Water did not
cancel the bid and proceeded to adjudicate it as if its integrity had not been
impeached. I conveniently refer to this ground as the vandalism ground.
[16] The second ground is that the 80:20 weighting system was applied as the value
of the bid was below R50 million. However, the bid advert referred to a 90:10
weighting system as the value of the bid would exceed R50 million. According to
Maano, if the former system was used, it does not accord with the bid advert. If
the latter system was used, it was inapplicable to the bid due to its value.
Therefore, either way, further contended Maano, the bid was not fairly evaluated.
I refer to this ground as the bid-weighting ground.
[17] Third, Maano contended that Rand Water extended the bid validity period several
times without obtaining the consent of all the tenderers. I refer to this ground as
the bid validity period ground.
the bid validity period ground.
[18] Lastly, Maano alleged that the bid document did not require the bidders to
consider the volume of the products when stating their prices. According to
Maano, this omission produced skewed results as a bidder could reduce its price
dramatically on a low -volume product and increase it marginally on a high -
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volume product. Therefore, an opportunistic bidder would bid at a far lower price
than a realistic bidder who formulated its bid price based on realistic volumes.
According to Maano, this renders the bid process irrational. I refer to this ground
as the product volumes ground.
[19] For Part A, Maano only placed reliance on the bid validity period ground. Given
that the vandalism ground was fully ventilated in the papers, as a result of my
urging, this ground was also ventilated during oral argument. Maano tried to
weave in the product volumes ground to come out of a tight conundrum it placed
itself in during oral argument when it relied on a ground of review that it did not
plead.
[20] During oral argument, a submission was made on Maano’s behalf that it had
offered to supply chemicals to Rand Water at a mark -up of 4,85% while Afro -
Zonke offered the products at R73,000 per ton, which Rand Water accepted.
This translated to a mark-up of 233% and amounts to a waste of public resources
and on the authority in Marce Projects (Pty) Ltd v City of Johannesburg
Metropolitan Municipality,10 it has a reasonable apprehension of harm that if the
interdict is not granted, state resources would be wasted. It is unclear how the
alleged waste of state resources imperils Maano’s rights to public procurement
that is fair, competitive, and equitable. Price is only one of many factors
considered when evaluating tenders. T he fact that Maano’s bid at a lower price
than Afro -Zonke does not, in and of itself mean Maano ought to have been
awarded the bid as a lower price is not the only requirement for the bid.
[21] But, Maano had a more daunting challenge. When pressed to indicated where in
its founding affidavit this issue is pleaded, reference was made to pricing
schedules and the orders which are annexed to the founding affidavit. It is trite
that this is not how a case is pleaded. When pressed further, it referred to the
paragraph where the product volumes ground is pleaded. When pressed
paragraph where the product volumes ground is pleaded. When pressed
furthermore, it rebounded to the allegation about Maano and Afro-Zonke’s price
mark-ups which, as already stated, is not pleaded . I therefore do not consider
the case advanced on Maano’s behalf only in oral argument as a proper factual
10 Footnote 8 above.
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basis for it was not made in the founding papers to afford the respondents to
answer thereto.
[22] Maano has not established that since the tender box was vandalized, it was
denied the right to a fair, equitable, transparent, competitive and cost -effective
procurement. Its case is that Rand Water was not responsible for vandalizing the
bid box and the incident remains under investigation. Beyond baldly alleging that
Rand Water should have cancelled the bid as its integrity was impeached, Maano
did not plead in what respect the vandalism impeached the bid process. At best,
at this stage, whether the vanda lization of the bid box indeed occurred and
impeached the integrity of the bid process amounts to speculation. No
particularity regarding how the integrity of the tender process was impeached ,
was pleaded.
[23] Therefore, ultimately, for the purpose of Part A, reliance was placed on the
extension validity ground of review. Maano alleged that Rand Water extended
the bid validity period seven times. Initially, it sent an extension request to all the
bidders. After several bidders were disqualified, it only sent the extension request
to the shortlisted bidders. Maano and Afro-Zonke are among the latter. According
to Maano, this is procedurally incorrect. An extension request had to be sent to
bidders who did not make the shortlist as the Bid Evaluation Committee could
direct the Bid Adjudication Committee to reconsider their disqualification. Failure
to send the extension request to these bidders, Maano further contended, is a
procedural flaw that violates the common law and s 217 of the Constitution and
invalidates the award of the tender.
[24] In its heads of argument, Maano seeks to hold Rand Water to the requirements
for the extension of bid validity periods as set out in the Treasury Regulations.11
It contended that failure to comply with these requirements invalidated the bid. It
was contended on its behalf that in terms of the Treasury Regulations, Rand
was contended on its behalf that in terms of the Treasury Regulations, Rand
Water had to obtain the consent from all bidders. According to Maano, this is a
mandatory requirem ent. Since Rand Water failed to comply with this
11 National Treasury’s Supply Chain Management: A Guide for Accounting Officers/Authorities
https://www.treasury.gov.za/legislation/pfma/guidelines/accounting%20officers%20guide%20to%20the%2
0pfma.pdf
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requirement, the tender validity period lapsed. As a result, when the award was
made, the bid had expired. Therefore, further contended Maano, the tender was
invalidly and unlawfully awarded. Again, this is an entirely new case not made
out in its foundin g papers. I only deal with it as it was fully ventilated in written
and oral submissions before me.
[25] Afro-Zonke contended that it consented to all extension requests and ha d no
knowledge that the other bidders did not consent to any of the extension
requests. Rand Water contended that it duly extended the bid validly period in
accordance with the terms and conditions of the bid and its internal Supply Chain
Management (SCM) policy. It complied with the bid validity period extension
requirements as set out in clause 8.11.2 its Supply Chain Management (SCM)
policy which provides as follows:
“8.11.2.1 Rand Water’s validity period for all bids, except emergency
procurement, is 180 calendar days from the closing date.
8.11.2.2 Rand Water reserves the right to extend the validity period for
a period reasonable for business requirements. Where a further
extension of bid validity is required, the evaluation conducted on the
original submissions from the market, however the price to be awarded
or considered inclusion of the applicable escalations affecting the bid.
8.11.2.3 Communication regarding the extension of bid validity must be
published before the validity period expiry date. Failure to adhere to
these policy provisions shall result in a bid cancellation.”
[26] According to Rand Water, in terms of its SCM policy, it reserved the right to
unilaterally extend the tender bid validity period, provided this is done before the
expiry of the tender validity date and for purposes of reasonable business
requirements, as o utlined below. Further, its SCM policy requires it to publish
communication regarding the extension of bid validity. The SCM Policy does not
communication regarding the extension of bid validity. The SCM Policy does not
provide for the requirement Maano alleged Rand Water failed to comply with.
[27] Rand Water further contended that in the bid invitation document, it also reserved
the right to extend the bid validity period. The bid document does not require
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Rand Water to obtain the consent of the bidders prior to extending the validity
period. Part T1 thereof provides as follows:
“Bid Validity
To be valid for 180 days after closing date.
Rand Water reserves the right to extend the validity period for a period
reasonable for business requirements.”
[28] Maano’s contention that Rand Water ought to have complied with the Treasury
Regulations lacks merit. In terms of s38 (1)(a)(iii) of the Public Finance
Management Act (PFMA)12, accounting officers are required to ensure that a
public trading entit y has an appropriate procurement and provisioning system
which is fair, equitable, transparent, competitive and cost-effective. The National
Treasury document Maano places reliance on was published to guide accounting
officers to implement the PMFA. Therefore, Maano’s contention that the
requirement to obtain the consent of all bidders when extending the bid validity
period is mandatory lacks merit. Rand Water acted in terms of its own SCM
Policy. Maano did not establish why it should not have implemented its own
policy when extending the validity period. Maano also did not impugn Rand
Water’s SCM policy in these proceedings. The terms of the bid, including the bid
validity period extension requirements, accords with Rand Water’s SCM policy.
[29] Further, it is unclear how Rand Water’s failure to obtain the consent of all the
bidders harmed Maano’s right to a fair, equitable, transparent, competitive and
cost-effective procurement process . Its consent was obtained. The basis on
which it contended that the consent of all bidders must have been obtained, as
they could re-enter the bid evaluation process did not even materialize. It is not
its case that the B id Evaluation Committee directed the Bid Adjudicating
Committee to reconsider any of the bidders who had not been shortlisted. Even
if it had done so, this is not a point for Maano to take, unless it can show that the
if it had done so, this is not a point for Maano to take, unless it can show that the
purported procedural flow impaired its right to a fair, equitable, transparent,
competitive and cost-effective procurement process. This reasoning is consistent
with that adopted by the Supreme Court of Appeal (SCA) in Aurecon South Africa
12 1 of 1999.
12
(Pty) Ltd v Cape Town City 13, on which Rand Water relies. There, the SCA held
that:
“…And the complaint relating to the other tenderers has no merit
whatsoever for the simple reason that they had already been found
ineligible at that stage and were out of the picture…”
[30] Invariably, by seeking its restoration, Maano also asserts rights arising from its
month-to-month contract with Rand Water . That contract was duly terminated.
Maano enjoys no legal right to its restoration . It did not point to a clause in the
contract, a statutory or regulatory provision or a common law principle that gives
it such a right. For the above reasons, I must find that Maano has not established
prospects of success in the review. Therefore, it has not established a prima facie
right to the interdict, even one that is open to doubt.
[31] For the same reasons set out above, Maano has failed to establish that it has a
well-grounded apprehension of harm. Therefore, the balance of convenience is
sharply ti lted against it. Having found that its rights in terms of s217 of the
Constitution are not at peril and it has not established the right to the restoration
of its month-to-month contract, there is no basis on which to find that it stands to
suffer prejudice if the interim interdict is refused.
[32] On the other hand, the prejudice to the respondents if the interim interdict is
granted would be substantial. Afro-Zonke has made a substantial investment and
incurred obligations towards implementing the tender which would be brought to
naught. This includes employing 6 staff members for a fix period of 5 years at a
cost of R12.4 million, site visits to Rand Water sites to understand its
requirements for the tender and sourcing the chemicals it requires to meet its
obligations in terms of the tender.
[33] It was at Maano’s peril that the application was not prosecuted on a semi-urgent
basis to prevent Maano from taking all these measures and to ameliorate the
basis to prevent Maano from taking all these measures and to ameliorate the
prejudice Afro-Zonke would suffer if the interim interdict were granted. It appears
that the peril was self -created as Maano does not seem to have requested that
13 Aurecon South Africa (Pty) Ltd V Cape Town City 2016 (2) SA 199 (SCA).
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the application is enrolled as a semi -urgent matter. As contended on behalf of
Rand Water and Afro-Zonke, granting the interdict would also interrupt the supply
of disinfectant chemicals which Rand Water requires to purify water and provide
millions of residents in the provinces of Gauteng, Northwest, Free State and
Mpumalanga with safe water. It poses the risk of water insecurity which would
adversely impact employment and livelihoods, destabilize the economy and
create a public health crisis.
[34] On the authority of Olympic Services, Maano’s failure to establish that it has
prospects of success in the review warrants the exercise of the court’s discretion
to refuse the interim interdict. On the authority in OUTA, it has failed to meet the
‘clearest of cases ’ threshold for this Court to interfere with the powers of the
executive to procure goods on behalf of the state and to provide the services for
which the relevant good s were procured. For all the above reasons, its
application for interim relief must fail.
[35] What remains is a determination of costs. There is no reason why costs should
not follow the course. The respondent s requested costs on a punitive scale
because this is the third application that Maano is bringing in respect of the same
tender. I am not persuaded that this warrants punitive costs against Maano. The
respondents have not established th at Maano has litigated frivolously or
vexatiously. Costs were determined in respect of the previous applications. As
far as Part B of Maano II is concerned, the respondents’ hands are not tied by
Maano’s failure to prosecute that application. They are entitled to enrol it for
hearing to recover its costs in that application if they establish that they are
entitled to them.
[36] Although Part A was removed from the urgent roll a t Maano’s instance, the
removal was agreed to. And, it was for the respondent s’ convenience, to afford
them more time to file opposing papers. Under these circumstances, I am not
them more time to file opposing papers. Under these circumstances, I am not
persuaded that those wasted costs should attract a punitive scale.
[37] Given the importan ce of the matter to the parties , the value of the tender, the
investments made to implement it and the importan t public service to which it
relates, awarding the respondents costs on scale C is warranted. The
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Appearances
For the Applicants: Adv K Tsatsawane SC
Instructed: Khanyile MB Attorneys Inc
For the 1st Respondent: Adv Mogagabe SC
Instructed: Raborifi Inc Attorneys
For the 2nd Respondent: Adv B Lekokotla
Instructed: Mahlare Attorneys
Date of hearing: 21 January 2026
Date of Judgement: 6 February 2026
This judgment is handed down electronically by circulation to the parties’ legal
representatives by email and publication on Case Lines and SAFLII. The date for the
handing down is deemed 10:00am on 6 February 2026.