IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 114325/26
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
17 JUNE 2026
DATE SIGNATURE
In the matter between:
MJAYELI SECURITY SERVICES (PTY) LTD
and
ESKOM HOLDINGS SOC LTD
NATIONAL TREASURY
NEUKIRCHER J:
Applicant
First Respondent
Second Respondent
1] This is an application brought in terms of the provisions of Rule 6(12) and set
down for hearing on 9 June 2026. The applicant seeks to suspend the implementation
of a decision taken by the first respondent (Eskom) , in terms of which the applicant
and its directors were restricted from doing business with Eskom for a period of seven
years, until finalisation of a review of that decision. The applicant also seeks to
suspend the alleged blacklisting of the payments in respect of its current contracts with
Eskom.
2] The applicant provides security services to Eskom at several key point areas in
the country. Those allegedly affected by the present blacklisting are the following:
a) Distribution area 1 in Kwa-Zulu Natal Operating Unit of the Central East
Cluster where applicant employs 192 personnel;
b) the response and escort services in the Northern Cape where applicant
employs 268 security personnel;
c) physical guarding services at Carletonville CLN where applicant
employs 96 security personnel; and
d) physical guarding services at Zwavelpoort where applicant employs 6
security personnel.
The applicant thus alleges that 562 personnel are affected by the administrative
decision which effectively restricts payment in respect of the applicant’s current
contracts.
3] It is common cause that in 2022 an anonymous whistleblower reported the
applicant for procurement irregularities. The complaint alleged that a contract was
awarded to the applicant1 in respect of a bid for the provision of security services at a
1 For a period of three years from 1 March 2021 until 31 January 2024
National Key Point at Matimba Power Station . The allegation is that the applican t
provided guards who did not have the requisite certification to carry firearms, which
resulted in a breach of Regulation 21 of the Firearms Control Act 60 of 2000, and the
National Key Points Act 102 of 1980. The allegation was further that the applicant
invoiced Eskom for armed guards whilst it was not in possession of the requisite
certifications.
4] As a result of the complaint, Eskom appointed a service provider to conduct an
investigation, which ultimately revealed that the applicant ’s security guards were
armed and performing duties at a National Key Point without the required firearm
certifications. Furthermore, following an in cident in November 2021 where a firearm
was accidentally discharged, Eskom discovered that the guards lacked the necessary
qualifications. Firearms were confiscated and the required training only occurred much
later.
5] Thus, the investigation found that the applicant had breached its contractual
obligations, had failed to comply with key pieces of legislation and had submitted
invoices for guards who were not properly qualified to perform armed duties . The
investigation concluded that these payments were, in these circumstances, irregular.
6] As a result, Eskom initiated disciplinary proceedings against the applicant and
invited it to make representations based on the allegations made. This the applicant
did on 12 June 2025.
7] On 30 March 2026, Eskom considered the applicant’s representations and on
14 April 2026 informed the applicant of the outcome: it restricted the applicant and its
directors from doing business with Eskom for a period of seven years 2 effective from
30 March 2026. It also informed the applicant that it intended to consult the second
respondent (National Treasury) to initiate the process set out in National Treasury Note
no 3 of 2021/2022 (Note 3). The latter, if approved by National Treasury, would restrict
the applicant and its directors from doing any business with the State.
8] The letter of 14 April 2026 specifically informed the applicant that the sanction
“would not necessarily impact on any existing contract…which is not tainted by any fraudulent
or other related impropriety and payment under such contract would be made… for goods and
services duly shown to be delivered. ” In other words, and as was submitted by Eskom,
the restriction would not prevent payment being made to the applicant in respect of
existing contracts.
9] The applicant argues that instead of complying with this undertaking, Eskom
appears to have blocked its vendor profile. This has prevented payments being made
in respect of the invoices submitted in respect of existing contracts.
10] The applicant argues that Eskom does not have the authority to impose any
restriction on any supplier and that any blacklisting/restriction can only be made by
National Treasury in terms of Note 3. It argues that the procedure adopted by Eskom
is thus arbitrary, irrational and unreasonable.
11] At present, and in this urgent application, only Part A is relevant: this is to seek
that Eskom’s decision to impose restrictions on the applicant be suspended until such
2 The initial period was recommended to be five years, but the committee ultimately imposed a longer
sanction
time as the review application in Part B is finalised. Essentially, the review is premised
on the allegation that Eskom acted without legal power, failed to involve National
Treasury as required by the procurement framework, and that Eskom imposed a
disproportionate sanction on the applicant.
12] In addition to Note 3, and in reply, the applicant sought to rely on a letter from
National Treasury dated 16 March 2026 in which the latter, in response to a request to
depart from Note 3, states:
“…Therefore, the NT does not support Eskom’s decision to temporarily restrict
suppliers while the supplier disciplinary process is ongoing instead, the NT
recommends that:
● Eskom strengthens its service level agreements or special and general
conditions od contracts to include clauses that allow for contractual remedies
instead of outright suspension as this may help balance the fairness and risk
of litigation.
● Eskom may consider incorporating clauses that would specify that material
non-performance, fraud, corruption, or other irregularities constitute grounds
for suspension of a contract or possible termination of the contract…”
13] The applicant argues that considering this letter, Eskom had no approval from
National Treasury to embark on its course of action, which is an essential requirement
before any blacklisting can be imposed.
14] When assessing the applicant’s argument, it does not appear that the complaint
is directed at the process undertaken by Eskom, ie the disciplinary proceedings
themselves – it is directed at the outcome and, specifically if one drills down to the nub
of the complaint, it is that the applicant complains that the blacklisting appears to not
only be in respect of future tenders and contracts, but current contracts and the
payments in respect of those. It argues that the practical effect of the blacklisting is
that the applicant is blocked from receiving payment even in respect of contracts not
related to the disciplinary charges.
15] The applicant relies on Economic Freedom Fighters v Gordhan and Others;
Public Protector v Gordhan and Others3 for its argument that a lighter threshold must
be met when seeking a suspension of an administrative action as opposed to an
interdict.
16] But the argument is that whether the court orders either a suspension of
Eskom’s decision or an interdict, the effect of the order must be to suspend the
imposition of the restriction of payments to the applicant.
17] In Gordhan the main judgment of Khampepe ADCJ states:
“[47] An interim interdict is a temporary order that aims to protect the rights of an
applicant, pending the outcome of a main application or action. It attempts to preserve
or restore the status quo until a final decision relating to the rights of the parties c an
be made by the review court in the main application. As a result, it is not a final
determination of the rights of the parties. It bears stressing that the grant of an interim
interdict does not, and should not, affect the review court’s decision when making its
final decision and should not have an effect on the determination of the rights in the
main application. The purpose of an interdict is to provide an applicant with adequate
and effective temporary relief.
3 2020 (6) SA 325 (CC)
[48] We were cautioned by this Court in OUTA that, where Legislative or Executive
power will be transgressed and thwarted by an interim interdict, an interim interdict
should only be granted in the clearest of cases and after careful consideration of the
possible harm to the separation of powers principle. Essentially, a court must carefully
scrutinise whether granting an interdict will disrupt Executive or Legislative functions,
thus implicating the separation and distribution of power as envisaged by law. In that
instance, an interim interdict would only be granted in exceptional cases in which a
strong case for that relief has been made out.”
18] The concurring judgment of Jafta J explains the effect of a suspension rather
than that of an interim interdict:
“[113] Therefore, even if it could be said that there were prospects against the grant of
the interdict, the applicants for leave would still be faced with the question whether
there were prospects against suspension. Requirements for suspension differ from
those needed for an interim interdict. The OUTA standard does not apply to
suspension.
[114] The power to suspend the operation of the Public Protector’s remedial action is
sourced from section 172(1)(b) of the Constitution. If in a matter like the present, it is
considered just and equitable to suspend a remedial action pending a determina tion
of the review in which the validity of the remedial action is impugned, a court may grant
the suspension. Guidance for issuing the suspension is derived from considerations
of justice and equity.
[115] A determination of a just and equitable order of necessity requires a careful
consideration of interests of parties on both sides of the litigation. The order must be
fair and just when all relevant factors are taken into account. What is just and equitable
in a given case, depends on the facts of that particular case. This sort of enquiry entails
a flexible approach in pursuit of justice and equity in every matter.
[116] As the first judgment observes, the enforcement of the remedial action before the
review is determined would be prejudicial to the applicant for review. It would mean
that he has to be punished in terms of the remedial action which he had successful ly
demonstrated was likely to be set aside as not meeting the requirements of the
Constitution and the relevant legislation. This would be the position where the record
shows no potentiality of prejudice to the Public Protector, should the enforcement of
the remedial action be put on hold until the finalisation of the review application. Its
immediate execution would serve no purpose other than short term expediency. The
remedial action we are concerned with here does not address or promote the rights or
interests of a particular person, let alone interests that require preservation pending
the determination of the review application.”
19] The applicant argues that it meets the requirements for both a suspension and
an interim interdict. It argues that the prima facie rights is based on the argument that
Eskom cannot arrogate to itself powers which reside in National Treasury ; that the
balance convenience and irreparable harm are intertwined as , if Eskom continues to
withhold essential payments on current contracts, it will be unable to pay the salaries
of the 5 62 employees dependent on it and this will have a knock -on effect to the ir
families who will be unable to meet their monthly obligations and put food on their
tables.
20] The applicant also points out that Eskom does not allege that it is not entitled to
receive payments – to the contrary, it undertook to pay, but the payment made in April
2026 and May 2026 paint a very different picture: in April 2026 invoices of
approximately R13 million were paid, but as at 3 May 2026 no payments had been
made and, ultimately, in May 2026 payments were made in the amount of
approximately R3 million.
21] The applicant ultimately argues that there is no other remedy available to it to
alleviate the immediate plight of its employees . Damages in due course will be cold
comfort to those whose livelihoods and living depends on the meagre salary they
receive every month.
22] Eskom opposes the relief sought. Ultimately it argues that the application is not
urgent and that any urgency is entirely self -created. It also argues that the applicant
has misconstrued the powers granted to Eskom by various pieces of legislation to
regulate its procedures and determine an outcome. It argues that proper procedures
were adopted, that applicant was granted an opportunity to respond to the allegations
made against it and that no case has been made out for the relied sought.
23] Eskom argues that it derives the power to impose restrictions from several key
pieces of legislation ad policy considerations. The first is s51(b) of the Public Finance
Management Act, 1999 which provides that an accounting authority for a public entity4
must
“(b) take effective and appropriate steps to prevent irregular expenditure, fruitless
and wasteful expenditure, losses resulting from criminal conduct and
expenditure not complying with the operational policies of the public entity.”
4 Eskom is a Schedule 2 of the PFMA public entity
24] Note 3 is aimed at enhancing compliance, transparency and accountability in
supply chain management and is applicable to Schedule 2 and Schedule 3 public
entities. Eskom is a Schedule 2 entity and is bound by Note 3. Paragraph 10 of Note
3 inter alia provides that where an investigation indicates any irregularity by a person,
Eskom must act against the person in accordance with the relevant prescripts and, in
addition to the penalties/remedies provided for in the relevant prescripts, also
implement remedial actions which may include, inter alia, cancelling the contract and
restricting the person from concluding business with the State. 5 Note 3 then provides
for the mechanism to be employed by Eskom if it wishes to restrict the person from
doing business with the State.
25] Eskom also requires suppliers to be registered on the Central Supplier
Database (CSD) maintained by National Treasury. A restriction on doing business with
the State refers to a restriction of a supplier on the CSD. Eskom however manages its
own supplier database 6 which is separate from the CSD. A restriction on doing
business with Eskom does not equate to an automatic registration on the CSD.
26] Revisions 47 and 58 of Eskom’s Procurement and Supply Chain Management
Procedure (SCMP) are also relevant. In terms of Revision 4, Eskom ’s Executive
Tender Committee is empowered to approve adoption of the July 2019 SCMP and any
deviation or relaxation thereof. Revision 4 also provides that the Supplier Review
5 Note at paragraph 10.1(d)(ii) and (iii)
6 The Eskom Supplier Database (ESD)
7 Dated 1 July 2019
8 Dated 1 February 2024
Committee is appointed by the Executive Tender Committee to consider complaints
regarding suppliers and pursue remedial action.9
27] The February 2024 SCMP provides that the manner of conducting investigation
into supplier irregularities and any decision taken in respect thereof, shall be within the
sole discretion of Eskom. It also provides that Eskom may impose and lawful and
appropriate sanction against a supplier including inter alia the deregistration or
restriction of a supplier on the Eskom Database.10
28] At the time of the applicant’s bid, the Eskom Supplier Integrity Pact was
applicable. It provides that Eskom has the rights, following a process of investigation
and having given the supplier an opportunity to state their case, to suspend a supplier
from the Eskom Supplier Database. It also provides that Eskom will forward the names
of suspended suppliers to National Treasury who will remove it from the CSD.11
29] All of the above detail the source of Eskom’s authority to impose the sanction it
did on the applicant. None of this is disputed by the applicant in reply. The highwater
mark of the replying affidavit is to place before the court the letter from National
Treasury set out in paragraph 12 supra and to state:
“The balance of the answering affidavit is disputed. More significantly, the issues
arising there so not relate to the relief claimed, and more particularly as it related to
effecting blacklisting such as to apply to other unrelated contracts, contrary to the
undertaking provided by Eskom on 16 April 2026.”
9 Clause 5.1.20
10 Clause 4.2.6
11 Clause 4.5
30] Notwithstanding the applicant’s dismissive stance, as set out in par 29 supra, it
is clear that Eskom’s explanation regarding the source of its powers, for its disciplinary
processes and the sanctions it may impose, are indeed relevant to the relief sought ,
have been fully explained and have not been impugned.
31] Eskom argues that the outcome of the disciplinary process was communicated
to the applicant as far back as 14 April 2026. Yet the applicant waited until 20 May
2026 to serve this application – more than a month after the decision was
communicated.
32] Eskom also points out that in the founding affidavit, the applicant states that:
“23.2 As at the communication of the restriction decision, the Applicant had no
immediate concern warranting the commencement of court proceedings. A
point of concern triggered after the fail of 03 May 2026, the date by which the
Applicant would have received p ayments from Eskom in respect of other
unrelated contracts.”
33] As I have already stated, the applicant does not complain about unfairness in
the procedural aspects of the disciplinary process. It also did not complain about the
sanction imposed when the outcome was communicated to it on 14 April 2026. It has
not complained about the restriction in respect of future tenders at all – in fact, it has
not even mentioned that as an issue , other than to argue that this sanction can only
be imposed by National Treasury, which is incorrect.
34] The applicant’s first complaint came about in May 2026 when it says Eskom did
not pay it and that is the nub of the application. That too seems to be a storm in a
teacup as Eskom has undertaken to make payment of current contracts under certain
terms – thus the proverbial ball has been in the applicant’s court since the tender was
made.
35] After it was served with this application, Eskom made a tender to the applicant
(which is contained in its answering affidavit), that applicant provide it with a list of
unpaid invoices and Eskom would then (i) establish the payment status of each
invoice, (ii) revert with any issues which are causing a delay of payment and (iii)
expedite payment of compliant invoices which are outstanding.
36] Although the applicant has stated in its reply that it has attempted to take Eskom
up on this tender but without success, that allegation is vague and no substantiation
has been provided by the applicant. In my view, Eskom’s tender is sufficient to address
the alleged urgency of this application – the payment of its employees. It is clear from
both the argument and these papers that Eskom has made payments to the applicant
for two months after the restriction date of 30 March 2026. That then demonst rates
that the restriction is not in respect of existing contracts as is alleged.
37] It is clear from the Gordhan case that when considering whether a suspension
of the decision should be ordered, considerations of justice and equity apply. A court
must weigh the interests of both parties, and the order must be fair and just when all
relevant factors are considered. Furthermore, what is just and equitable depends on
the facts of the case.
38] On the other hand, there will be substantial prejudice to Eskom were its decision
to be suspended pending the review application. Essentially this would mean that the
applicant would be able to tender for future projects and, if the review application were
to be ultimately unsuccessful, it would put Eskom in the untenable position where it
may potentially have contracted with a restricted party past the initial date on which
the restriction was imposed.
39] Perhaps, once a full record is received for purpose of the review envisaged in
Part B of this application, that court will be of a different view , but at this stage the
applicant has failed to satisfy me that Eskom’s processes were tainted or its decision
was procedurally unfair, arbitrary, irrational or unreasonable. Insofar as the applicant
argues that Eskom’s decision extends to restricting its business with the State, it is
very clear from these paper s that that is not so – Eskom intends to first co nsult with
National Treasury, and it is for National Treasury to make that determination. This too
is clear from the papers.
40] In my view, the applicant has failed to make out a case for the suspension of
Eskom’s decision of 30 March 2026. Its failure to meet this less stringent requirement
means that it certainly does not meet the requirement for any form of interdictory relief:
not only can it not prove that its right to a fair administrative procedure has been
violated, it cannot demonstrate that the balance of convenience favours it nor that it
will suffer irreparable harm were relief not to be granted – this is all tied up with the
payment issue which I have addressed supra. The applicant has a satisfactory
alternative remedy: it can approach Eskom with its invoices and, if necessary, in due
course claim damages from Eskom.
41] In the event that Eskom either drags its feet on its undertaking or does not
comply with its undertaking, the applicant is similarly not without remedy pending the
review.
42] Thus, this application must fail both on urgency and on merits in respect of Part
A.
43] In my view costs must follow the result. I am of the view that costs on Scale C
are justified given the issues before court, the importance of the matter to both parties
and that applicant has employed senior counsel.
Order
Part A of the application is dismissed with costs, which costs are to be taxed in
accordance with Scale C.
8 NEUKIRCHER
JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
This judgment was prepared and authored by the judge whose name is reflected and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on Caselines . The
date for hand-down is deemed to be 17 June 2026
Appearances
For the appellant : Adv Manala SC
Instructed by : Manala & Co Inc
For the first respondent : Adv Seape
Instructed by : Mchunu Attorneys
Matter heard on : 9 June 2026
Judgment date : 17 June 2026