REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2026-037477
DATE: 13 March 2026
In the matter between:
KOIKANYANG INCORPORATED Applicant
and
ESKOM HOLDINGS SOC LIMITED Respondent
Neutral Citation: Koikanyang Incorporated v Eskom Holdings (2026-037477)
[2026] ZAGPJHC --- (13 March 2026)
Coram: Adams J
Heard: 10 March 2026
Delivered: 13 March 2026 – This judgment was handed down electronically
by circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 14:30 on 13 March 2026.
Summary: Civil procedure – urgent application – for an interim interdict,
pending review of award of tender by Eskom to other service providers –
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Urgent application opposed on three main grounds – point in limine of non -
joinder (upheld) – failure to join the successful bidders, who have a direct and
substantial interest in the outcome of proceedings – no prima facie right for the
purposes of interim relief (not accepted) - no irreparable harm and the balance
of convenience (both upheld) –
Application for interim interdictory relief dismissed with costs.
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ORDER
(1) The applicant’s urgent application is dismissed with costs.
(2) The respondent shall pay the applicant’s costs of this opposed urgent
application, such costs to include the costs consequent upon the utilisation
of two Counsel, one being Senior Counsel (where so employed), on scale
‘C’ of the applicable tariff provided for in the Uniform Rules of Court.
JUDGMENT
Adams J:
[1]. This is an opposed urgent application by the applicant for interim
interdictory relief against the respondent (‘Eskom’). Pending the final
determination of an application to be instituted by the applicant for the review
and the setting aside of the award of Tender Number MWP2663CX (‘the
tender’) by the respondent to a panel of legal service providers, the applicant
seeks to interdict and restrain the respondent from implementing or giving effect
to the award of the tender. The applicant also applies to interdict and restrain
the respondent from concluding any service level agreement s pursuant to the
award of the tender to the panel of legal service providers.
[2]. In sum, in this urgent application, the applicant appl ies for interim relief
against the respondent pending the final determination of a review application to
be instituted under Part B. The applicant was disqualified from participating in
the tender for the appointment of a panel of attorneys for the provision of legal
services published under the above Tender Number.
[3]. Eskom opposes the application on three main grounds. First, it raises a
point in limine: the applicant has failed to join the successful bidders, who have
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a direct and substantial interest in the outcome of these proceedings. Second, it
contends that the applicant did not meet the minimum qualification criteria and
therefore has no prima facie right for the purposes of interim relief. Third, it
argues that the applicant has failed to satisfy the remaining requirements for an
interim interdict, including irreparable harm and the balance of convenience.
[4]. Therefore, t he first issue to be decided in this urgent application is
whether the point in limine regarding non-joinder has merit and, if so, whether
such point is dispositive of the matter. Secondly. whether the applicant has
made out a case for the interim relief it seeks. These issues are to be decided
against the facts in the matter as set out in the paragraphs which follow.
[5]. The applicant was one of 202 tenderers who responded to the Invitation
to Tender ( ‘ITT’) dated 31 July 2024. The ITT stipulated, as a mandatory
qualification criterion, that the Tender was targeted at enterprises with a B -
BBEE contributor status of Level 1 to 3, and that tenderers were required to
submit ‘a valid B-BBEE certificate or sworn affidavit’ as proof of their status. The
ITT was unambiguous: failure to comply with this mandatory requirement would
result in disqualification.
[6]. The applicant submitted a sworn affidavit dated 2 September 2024 as
proof of its B -BBEE status. On the face of that affidavit, the commissioner of
oaths did not state the date on which the declaration was taken. This is a
requirement prescribed by Regulation 4(1) of the Regulations Governing the
Administering of an Oath or Affirmation promulgated under the Justices of the
Peace and Commissioners of Oaths Act 16 of 1963 (‘the Regulations’).
[7]. Following a reactive assurance review conducted by an independent
auditor in October 2025, it was determined that the applicant’s B -BBEE affidavit
was invalid due to this omission. The auditor’s report, dated 31 October 2025,
was invalid due to this omission. The auditor’s report, dated 31 October 2025,
recorded that the applicant was one of a number of bidders who had failed to
comply with the B -BBEE documentation requirements. The respondent
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accordingly disqualified the applicant and advised it of this decision by letter
dated 29 January 2026.
[8]. The applicant contends that its affidavit was valid, that it substantially
complied with the Regulations, and that Eskom’s decision to disqualify it was
unlawful. It seeks to preserve its position by way of an interim interdict pending
a review application which it has undertaken to institute within 30 days of the
grant of such interdict.
[9]. Section 1 of the ITT, under the heading ‘Qualification Criteria’, stated as
follows: -
‘This panel is targeted for enterprises that are between B -BBEE Level 1 and Level 3.
Tenderers that fall outside of these BBEE levels will be disqualified and not be
evaluated further. Tenderers are required to submit a valid B-BBEE certificate or sworn
affidavit as proof of their B-BBEE status and level.’
[10]. The applicant submitted its tender response on 25 September 2024.
Included in its response was a sworn affidavit dated 2 September 2024,
deposed to by Mr Mabitsela Elijah Ikabod Ramonyai, a director of the applicant,
before a Mr Jan Christopher Kruger, a commissioner of oaths. It is evident from
the face of the affidavit that the commissioner of oaths did not state the date on
which the oath was taken and the affidavit commissioned. The commissioner of
oath’s signature appears, and his full name and busines s address are printed
below his signature, but the date is absent. This is confirmed by the applicant in
its founding affidavit.
[11]. The Tender process proceeded through various stages. The applicant
was initially permitted to participate in further stages, including price
negotiations in August 2025. However, on 2 September 2025, Eskom engaged
an external auditor, Nexia SAB&T, to perform a reactive assurance review of
the evaluation process. The auditor’s report, dated 31 October 2025, identified
that 36 suppliers had failed to comply with the B -BBEE documentation
that 36 suppliers had failed to comply with the B -BBEE documentation
requirements, including the applicant. The report recorded that the appli cant’s
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B-BBEE affidavit was invalid because it was ‘unsigned or undated by the
deponent and or commissioner of oath rendering them non -compliant with legal
standards’.
[12]. On 16 January 2026, Eskom’s Executive Tender Committee considered
the auditor’s findings and resolved to disqualify the non -compliant bidders. The
applicant was advised of its disqualification by letter dated 29 January 2026.
The letter stated that the disqualification was based on the finding that its B -
BBEE affidavit was invalid.
[13]. Correspondence ensued between the parties. On 3 February 2026, the
applicant objected to its disqualification. On 10 February 2026, Eskom
responded, reiterating its position and explaining that the affidavit was invalid
because the commissioner of oaths had not dated it. Eskom also referred to the
B-BBEE Commission’s Practice Guide, which requires that the date on which
the deponent signs and the date on which the commissioner of oaths signs
must be the same.
[14]. The applicant launched this urgent application on 18 February 2026. The
notice of motion seeks the relief set out above. The applicant has undertaken to
institute review proceedings within 30 days of the grant of an interdict.
[15]. I am satisfied that t he applicant’s application is urgent. T he new panel of
legal service providers is scheduled to become operational on 15 March 2026. If
the interim relief is not granted before that date, the applicant will be unable to
participate in the panel for a period of five years, and any subsequent success
in the review application will be rendered moot or of academic interest only. In
any event, Eskom does not seriously dispute the urgency of the application.
Indeed, it accepts that the matter is urgent, albeit it contends that the application
is manifestly ill-conceived and ought to be dismissed on the merits.
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[16]. That brings me to the respondent’s legal point in limine, that being non-
joinder of the successful bidders . This point is , in my view, t he first and most
fundamental obstacle confronting the applicant.
[17]. It is well established that a party has a direct and substantial interest in
any order which a court may make if that order would prejudicially affect that
party’s rights or interests. As Brand JA stated in City of Johannesburg & Others
v SA Local Authorities Pension Fund & Others1, at paragraph 9:
‘[9] As to the relevant principles of law, it has by now become well established that, in
the exercise of its inherent power, a court will refrain from deciding a dispute unless
and until all persons who have a direct and substantial interest in both the subject -
matter and the outcome of the litigation, have been joined as parties (see eg
Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 657 and
659; Gordon v Department of Health: KwaZulu-Natal 2008 (6) SA 522 (SCA); (2008) 29
ILJ 2535 (SCA) para 9). A “direct and substantial interest ” is more than a financial
interest in the outcome of the litigation. A test often employed to determine whether a
particular interest of a third party is the one or the other, is to examine whether a
situation could arise in which, because the third party had not been joined, any order
the court might make would not be res judicata against that party, entitling him or her to
approach the court again concerning the same subject -matter and possibly obtain an
order irreconcilable with the order made in the first place (see eg Amalgamated
Engineering Union at 661; Transvaal Agricultural Union v Minister of Agriculture & Land
Affairs & others 2005 (4) SA 212 (SCA) paras 64-66).’
[18]. On the application of these principles of law to the facts in casu, it would
appear on the face of it that the respondent’s non-joinder objection is a valid
one. The successful bidders have an undeniable direct and substantial interest
one. The successful bidders have an undeniable direct and substantial interest
in these proceedings. The applicant seeks an order interdicting Eskom from
implementing the award of the tender and from concluding service level
agreements with the successful bidders. Eskom has disclosed that 17 of the
successful bidders have already concluded service level agreements. The
1 City of Johannesburg & Others v SA Local Authorities Pension Fund & Others (2015) 36 ILJ 1439 (SCA);
(20045/2014) [2015] ZASCA 4 (9 March 2015).
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remaining 24 stand to be precluded from concluding such agreements if the
relief is granted.
[19]. The effect of the order sought would be to suspend the rights of the
successful bidders to render legal services to Eskom and to receive the benefits
of their appointment under the Tender for a period which, on the applicant’s own
version, could extend to two years. This is plainly prejudicial to their legal
interests.
[20]. The applicant seeks to avoid this conclusion by advancing several
arguments, none of which withstand scrutiny.
[21]. First, the applicant contends that the rights of the successful bidders will
remain intact because the relief sought merely ‘temporarily pauses ’ the
execution of those rights. This is a distinction without a difference. A right that
cannot be exercised for an extended period is, for all practical purposes, a right
that has been suspended. The successful bidders are entitled to be heard
before their rights are suspended in this manner.
[22]. Second, the applicant suggests that Eskom can simply continue to utilise
its current panel of attorneys on a month -to-month basis, as it has done since
April 2025. This misses the point entirely. The question is not whether Eskom
can continue with the status quo , but whether the successful bidders have a
right to participate in proceedings that directly affect their interests. They do.
[23]. Third, the applicant argues that if any party has an interest, it is the 27
bidders who were also disqualified on similar grounds. This is a non sequitur.
The fact that other parties may also have an interest does not diminish the
interest of the successful bidders. If anything, it underscores the complexity of
the tender process and the need for all affected parties to be joined.
[24]. Fourth, the applicant contends that even if joinder is desirable, non -
joinder is not automatically fatal, and the court may order joinder post facto,
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particularly in Part B. This submission confuses the nature of the relief sought in
Part A. The interim interdict, if granted, will take immediate effect. It will suspend
the rights of the successful bidders pending the finalisation of the review
application. They are entitled to be heard before such an order is made. Joinder
after the fact would be an empty remedy.
[25]. In the presen t case, the successful bidders were identified by Eskom in
its answering affidavit. The applicant was on notice of their identity and could
have taken steps to join them. It chose not to do so. The matter cannot proceed
in their absence.
[26]. Accordingly, the point in limine must be upheld. This alone is dispositive
of the application. However, out of completeness, and because the matter was
fully argued, I proceed to consider the merits of the application for interim relief.
[27]. The requirements for an interim interdict are well established. An
applicant must show: (a) a prima facie right, even if open to some doubt; (b) a
well-grounded apprehension of irreparable harm if the interim relief is not
granted and the ultimate relief is eventually granted; (c) that the balance of
convenience favours the granting of interim relief; and (d) that the applicant has
no other satisfactory remedy. See Setlogelo v Setlogelo 2; Webster v Mitchell 3.
The applicant bears the onus of satisfying all four requirements. Failure to
establish any one of them is fatal to the application.
[28]. In National Treasury and Others v Opposition to Urban Tolling Alliance
and Others4, the Constitutional Court affirmed the continued applicability of the
Setlogelo test, albeit with due regard to constitutional principles, including the
separation of powers and the principle of legality.
2 See Setlogelo v Setlogelo 1914 AD 221.
3 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189.
4 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC).
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[29]. As for the prima facie right requirement, the applicant’s claimed right is to
have its bid considered in accordance with a fair and lawful procurement
process, and ultimately to be appointed to the panel if its bid is found to be
compliant. In the context of an interim interdict pending review, a prima facie
right may be established by demonstrating reasonable prospects of success in
the review. See South African Informal Traders Forum v City of Johannesburg;
South African National Traders Retail Association v City of Johannesburg5.
[30]. The correct approach to follow in determining whether a prima facie right
is established was set out in Webster v Mitchell6 as follows:
‘[T]he right to be set up by an applicant for a temporary interdict need not be shown by a
balance of probabilities. If it is "prima facie established though open to some doubt" that is
enough. … …
… The proper manner of approach I consider is to take the facts as set out by the applicant,
together with any facts set out by the respondent which the applicant cannot dispute, and to
consider whether, having regard to the inherent probabilities, the applicant could on those facts
obtain final relief at the trial. The facts set up in contradiction by the respondent should then be
considered. If serious doubt is thrown upon the case of the applicant, he could not succeed in
obtaining temporary relief, for his right, prima facie established, may only be open to "some
doubt". But if there is mere contradiction, or unconvincing explanation, the matter should be left
to trial and the right be protected in the meanwhile, subject of course to the respective prejudice
in the grant or refusal of interim relief.’
[31]. The Constitutional Court has also recently stated that it is sufficient for a
party to assert a right adversely affected by the exercise of public power, which
that applicant seeks to review. In South African Informal Traders Forum v City
that applicant seeks to review. In South African Informal Traders Forum v City
of Johannesburg; South African National Traders Retail Association v City of
Johannesburg7, the Constitutional Court held that ‘a prima facie right may be
established by demonstrating prospects of success on the review’.
5 South African Informal Traders Forum v City of Johannesburg; South African National Traders Retail
Association v City of Johannesburg 2014 (4) SA 371 (CC) at paragraph 25.
6 Webster v Mitchell 1948 (1) SA 1186 (W).
7 South African Informal Traders Forum v City of Johannesburg; South African National Traders Retail
Association v City of Johannesburg 2014 (4) SA 371 (CC) para 25.
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[32]. The central question in the envisaged review is whether Eskom was
entitled to disqualify the applicant’s bid on the ground that its B -BBEE affidavit
was invalid. This depends on whether the affidavit complied with the
Regulations.
[33]. It is common cause that the commissioner of oaths did not state the date
on which he commissioned the oath. He did however sign the affidavit and his
signature was attached below that of the deponent. The date is also indicated
(seemingly by the deponent) as 2 September 2024, immediately below the
signature of the deponent. So, however one views the affidavit, it is clear that
the objection by Eskom to the affidavit is of a highly technical nature. Although, I
must hasten to add that the affidavit does appe ar to constitute a clear breach of
the letter of the Regulations governing the administration of oaths.
[34]. The applicant contends that the Regulations do not require the
commissioner of oaths to date his signature; they only require that the
commissioner ‘sign the declaration and print his full name and business
address’. Importantly, the applicant contends that its affidavit substantially
complied with the Regulations. It relies on the confirmatory affidavit of the
commissioner of oaths, Mr Kruger, who confirms that the affidavit was signed in
his presence on 2 September 2024.
[35]. The applicants lastly submits that substance should not be allowed to be
trumped by form.
[36]. There may very well be merit in these contentions on behalf of the
applicant. This translates into a prima facie right, which, in turn, satisfies the first
requirement for the granting of the interim interdict. The simple point is that the
applicant’s claim for a review and a setting aside of the award of the tender –
which claim has reasonable prospects of success, constitute the prima facie
right required for purposes of the granting of an interim interdict.
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[37]. The same cannot however be said of the second requirement that the
applicant must demonstrate irreparable harm. In that regard, I am of the view
that the applican t has failed to demonstrate a well -grounded apprehension of
irreparable harm.
[38]. Eskom has stated in its answering affidavit that it intends to augment its
panel of attorneys with additional law firms where necessary. The Tender was
not issued on the basis of a closed panel, and there is no maximum number of
firms that may be appointed. The applicant will accordingly have a further
opportunity to tender for inclusion on Eskom’s panel.
[39]. The applicant dismisses this as a ‘mere possibility ’. This is not a fair
characterisation of Eskom’ s statement. Eskom has made a clear and
unequivocal statement of its intention. There is no reason to doubt its bona
fides.
[40]. The applicant also relies on the fact that the panel is for a period of five
years, and that if it is not appointed now, it will miss out on opportunities during
that period. This is the ordinary consequence of an unsuccessful tender. It does
not constitute irreparable harm. Irreparable harm means harm that cannot be
adequately remedied by an award of damages or by any other legal remedy.
The loss of an opportunity to earn income is compensatable in damages.
Moreover, the applicant will have further opportunities to tender.
[41]. I therefore conclude that the applicant has failed to establish irreparable
harm.
[42]. As for the balance of convenience, in Olympic Passenger Service (Pty)
Ltd v Ramlagan8, the Court held as follows:
‘In such cases, upon proof of a well -grounded apprehension of irreparable harm, and there
being no adequate ordinary remedy 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
8 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D) at 383E–F.
13
consideration of the prospects of success and the balance of convenience – the stronger the
prospects of success, the less need for such balance to favour the applicant: the weaker the
prospects of success, the greater the need for the balance of convenience to favour him .’
[43]. In Moyane v Ramaphosa and Others9, it was held that when considering
the balance of convenience it is appropriate to take the national interest into
account where that is applicable.
[44]. Eskom has adduced undisputed evidence of the prejudice it would suffer
if the interdict were granted. It currently has 381 active litigious files. Its current
panel of attorneys expires on 15 March 2026. If the interdict is granted, Eskom
will be unable to appoint any new attorneys to handle these matters. It will be
forced to continue with its existing panel on a month -to-month basis, a panel
that has been in place since April 2019 and which Eskom has determined
should be replaced through a competitive process.
[45]. The prejudice to Eskom is not merely financial. It goes to the core of its
ability to exercise and pursue its legal rights, to defend litigation, and to ensure
compliance with its statutory obligations. The knock -on effect for Eskom’s
operations, and for those who rely on its services, would be significant.
[46]. I conclude that, in my view, t he balance of convenience favours the
refusal of the interdict.
[47]. As regards the requirement that there are no alternative remedies
available, t he applicant contends that it has no other satisfactory remedy
because it cannot obtain substantial redress in the ordinary course. This
argument is essentially a restatement of its urgency argument. It does not
address the availability of alternative remedies, such as a damages claim,
should it ultimately succeed in the review.
9 Moyane v Ramaphosa and Others [2019] 1 All SA 718 (GP) at para 29.
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[48]. In sum, I come to the conclusion that t he applicant has failed to join
parties with a direct and substantial interest in these proceedings. This is fatal to
the application. Even if non-joinder were not dispositive, the applicant has failed
to establish irreparable harm or that the balance of convenience favours the
grant of interim relief. The application therefore falls to be dismissed.
[49]. Accordingly, I conclude that the applicant has failed to make out a case
for the interim relief sought. The applicant ’s urgent application for interim
interdictory falls to be dismissed.
Costs
[50]. The general rule in matters of costs is that the successful party should be
given his costs, and this rule should not be departed from except where there
are good grounds for doing so , such as misconduct on the part of the
successful party or other exceptional circumstances. See: Myers v Abramson10.
[51]. I can think of no reason why I should deviate from this general rule. The
applicant should therefore be ordered to pay the respondent’s costs of the
opposed urgent application.
Order
[52]. In the result, I make the following order:
(1) The applicant’s urgent application is dismissed with costs.
(2) The respondent shall pay the applicant’s costs of this opposed urgent
application, such costs to include the costs consequent upon the utilisation
of two Counsel, one being Senior Counsel (where so employed), on scale
‘C’ of the applicable tariff provided for in the Uniform Rules of Court.
10 Myers v Abrahamson 1951(3) SA 438 (C) at 455
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HEARD ON: 10 March 2026
JUDGMENT DATE: 13 March 2026 – Judgment handed
down electronically
FOR THE APPLICANT: T Makgate, with P Sekati
INSTRUCTED BY: Koikanyang Incorporated,
Houghton Estate, Johannesburg
FOR THE RESPONDENT: A E Franklin SC, with N Stein
INSTRUCTED BY: Tembe Kheswa Nxumalo Inc,
Sandown, Sandton