SAFLII Note: Certain personal/private det ails of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)
Not Reportable
Case No: 2026 - 165882
In the matter between:
WORLD FOCUS 226 CC t/a WF CONSTRUCTIONS Applicant
and
THE CITY OF CAPE TOWN First Respondent
THE CITY MANAGER OF THE CITY OF Second Respondent
CAPE TOWN
JJ DYERS CONSTRUCTION (PTY) LTD Third Respondent
NEJENI CONSTRUCTION AND PROJECT Fourth Respondent
MANAGEMENT (PTY) LTD
MARTIN AND EAST (PTY) LTD Fifth Respondent
Coram: Norton AJ
Heard: 30 July 2026
Order granted: 31 July 2026
Reasons given: 11 August 2026 (electronically)
ORDER
1 The applicant’s non-compliance with the forms, time periods and
service requirements in the Uniform Rules of Court is condoned
and the matter is heard as one of urgency.
2 The application under Part A of the applicant’s Notice of Motion is
dismissed.
3 The applicant shall pay the costs of the application, such costs to
include the costs of two counsel on scale C.
REASONS
Norton AJ
[1] On 30 July 2026 the applicant’s application for a final interdict against
the first and second respondents came before me on the urgent roll. I handed
down an order on 31 July 2026, indicating that my reasons would follow.
These are my reasons.
Background
[2] The applicant, after a successful tender, concluded a contract with the
first respondent (the City) under Tender 1[...] (Tender 111Q) on 12 June
2023 in terms of which it would provide emergency repairs and maintenance
of water infrastructure for a period of 36 months from 1 July 2023 to 30 June
2026 (the Contract).
[3] On 23 May 2025 the City advertised Tender 2[...] (Tender 273Q) for
the provision of emergency repairs and maintenance of water infrastructure
for the period of 36 months from 1 July 2026 to 30 June 2029 . Tender 273Q
was a ‘replacement tender’ for Tender 11Q. The applicant tendered for the
contract under Tender 273Q but was unsuccessful. The successful tenderers
were the third to fifth respondents and the City concluded a contract with
them (the replacement contract) that would commence on 1 July 2026 for a
period of 36 months.
[4] The applicant lodged an internal appe al against the City’s decision in
respect of Tender 273Q. Its appeal was dismissed on 12 June 2026.
[5] On 15 June 2026 , two weeks before the expiry of the Contract, the
applicant and the City concluded an addendum to the Contract (the
Addendum) in which it was agreed that ‘the Contract be expanded from 01
July 2026 to 31 December 2026, on a month -to-month basis, alternatively
until the replacement contract is in place, whichever comes first.’
[6] On 18 June 2026 an employee of the City furnished the applicant with
a copy of the signed Addendum and stated in the accompanying email:
‘Note we are expecting 1[...] to only be extending by 1 month and closing
off on 31 July 2026.’
[7] On 8 July 2026 the applicant’s construction manager was advised in a
telephonic conversation with an official of the City that Tender 273Q would
commence on 1 August 2026.
[8] On 13 July 2026 the applicant instituted an application in two parts.
[9] In Part A, the applicant sought an order that the status quo ante, as at
the date of service of the application, be preserved in respect of the Contract
(the status quo relief). Additional relief sought in Part A – among other
things an order interdicting the City from implementing any contract or
allocating any work pursuant to Tender 273Q – was abandoned in argument
at the hearing of the application.
[10] In Part B, the applicant sought an order reviewing and setting aside
the City’s decisions, first, to declare the applicant’s bid in respect of Tender
273Q non-responsive; and second, to award Tender 273Q to the third, fourth
and fifth respondents.
[11] It was apparent from the founding papers that what the applicant
sought by way of the status quo relief was an order holding the City to the
Contract beyond 1 August 2026 and until 31 December 2026, unless the City
were to give the applicant one month’s notice that the replacement contract
was to commence on a date earlier than 31 December 2026 , in which case
the Contract would end on the date of commencement of the replacement
contract.
[12] This relief was sought on the basis that the replacement contract in
respect of Tender 273Q was due to be implemented on 1 August 2026, but
the applicant had not been afforded one month’s notice of termination of the
Contract, to which (it claimed) it was entitled.
[13] The applicant framed its Part A relief as a final interdict and it was
accepted in argument that there is no relationship between the relief sought
in Part A and that sought in Part B. Success under Part A would, at best,
allow the applicant to continue providing services in terms of the Contract
until 31 December 2026, and not any later date on which the relief sought in
Part B would finally be determined.
Urgency
[14] I accept that the application was urgent, in circumstances where the
implementation of the replacement contract was imminent and the applicant
brought the application expeditiously.
Interdictory relief
[15] The applicant for a final interdict is required to establish (i) a clear
right; (ii) an injury actually committed or reasonably apprehended; and (iii)
the absence of an adequate alternative remedy (Setlogelo v Setlogelo 1914
AD 221 at 227).
[16] The applicant asserted a right to the continuation of the Contract
beyond 1 August 2026 on the basis that it was entitled to, but had not been
afforded, one month’s written notice of the date on which the replacement
contract would commence.
[17] This contention was rooted in the words ‘on a month -to-month basis’
in clause 4.1 of the Addendum, which reads as follows:
‘The Parties record that the Contract be expanded from 1 July 2026 to 31
December 2026 on a month -to-month basis , alternatively until the
replacement contract is in place, whichever comes first.’
[18] However, I am of the view that on a proper interpretation of clause
4.1, the words ‘on a month-to-month basis’ are something of a red herring.
[19] The meaning of clause 4.1 must be determined in accordance with the
recognised principles of contractual interpretation , which were chrystallised
in the following dicta of Wallis JA in Natal Joint Municipal Pension Fund v
Endumeni Municipality 2012 (4) SA 593 (SCA) (Endumeni) para 18:
‘Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of
the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the
material known to those responsible for its production.’
…
‘Judges must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible or businesslike for the words
actually used. To do so in regard to a statute or statutory instrument is to
cross the divide between interpretation and legislation; in a contractual
context it is to make a contract for the parties other than the one they in fact
made. The “inevitable point of departure is the language of the provision
itself”, read in context and having regard to the purpose of the provision
and the background to the preparation and production of the document.’
[20] In Capitec Bank Holdings Ltd and Another v Coral Lagoon
Investments 194 (Pty) Ltd and Others 2022 (1) SA 100 (SCA) Unterhalter
AJA (as he then was) elaborated on the principles outlined in Endumeni:
‘[25] … I would only add that the triad of text, context and purpose should
not be used in a mechanical fashion. It is the relationship between the
words used, the concepts expressed by those words and the place of the
contested provision within the scheme of the agreement (or instrument) as a
whole that constitute the enterprise by recourse to which a coherent and
salient interpretation is determined.’
‘[26] … Endumeni is not a charter for judicial constructs premised upon
what a contract should be taken to mean from a vantage point that is not
located in the text of what the parties in fact agreed. Nor does Endumeni
license judicial interpretation that imports meanings into a contract so as to
make it a better contract, or one that is ethically preferable.’
[21] On a plain reading of clause 4.1, there are only two dates on which the
Contract (as extended by the Addendum) may come to an end.
[22] The first date is 31 December 2026 . On that date t he Contract would
come to an end by the effluxion of time.
[23] The second date is any date before 31 December 2026 on which ‘ the
replacement contract is in place ’. On that date the Contract would come to
an end as a result of the occurrence of a specified event, as is the case with
any resolutive time clause that provides for termination on the occurrence of
an event that is certain to occur albeit that the date of occur rence is
uncertain. (See Wessels The Law of Contract in South Africa 2nd Edition
(1951) para 1439, cited in Trinity Asset Management (Pty) Ltd v Grindstone
Investments 132 (Pty) Ltd 2018 (1) SA 94 (CC) para 158).
[24] There is nothing in the text of clause 4.1 or the Addendum as a whole
that provides for termination of the Contract by notice or requires the City to
give the applicant notice of the date on which the replacement contract will
be in place.
[25] Viewed in its context – within the Addendum and in the
circumstances in which the Addendum was concluded – it is evident that the
purpose of clause 4.1 wa s to ensure that the City would not experience a
break in the provision of important municipal services between the end date
of its fixed-term contract with the applicant and the commencement of its
new fixed-term contract with the third to fifth respondents . The use of the
word ‘replacement contract’ signifies an intention that the City would not
find itself bound by two contracts for the same services when the contract
with the third to fifth respondents commenced.
[26] The applicant knew, when the Addendem was concluded , that it had
not been successful in respect of Tender 273Q and that the ‘hard stop’ for its
continued services would be the date on which the replacement contract was
‘in place’. The parties were ad idem at the hearing of the matter that the date
on which the replacement contract would be ‘in place’ was the date on
which it commenced. That is the bargain that the applicant made.
[27] In my view there is no basis for the construction of clause 4.1 that the
applicant advances. The following observation in paragraph 51 of Capitec is
apposite.
‘Most contracts, and particularly commercial contracts, are constructed
with a design in mind, and their architects choose words and concepts to
give effect that design. For this reason, interpretation begins with the text
and its structure. They have a gravitational pull that is important. The
proposition that context is everything is not a licence to contend for
meanings unmoored in the text and its structure. Rather, context and
purpose may be used to elucidate the text.’
[28] In argument for the applicant reliance was placed on the common law
principle whereby a periodical lease agreement that contains no express
termination clause is terminable by either party on reasonable notice.
However, that principle applies only to lease agreements that fix no end date
and are thus of indefinite duration. The principle that applies in lease
agreements of defined duration (whether they are to end on a fixed date or
on the happening of a specified event) is the following:
‘If a lease is for a fixed period or until the occurrence of a specified event,
the obligations arising from it terminate automatically when the period ends
or the event occurs’ (Bradfield & Lehmann, Principles of the Law of Sale &
Lease, Third Edition, p 185).
[29] I was also referred to Amalgamated Beverage Industries Ltd v Rond
Vista Wholesalers 2004 (1) SA 538 (SCA) for the proposition that a tacit
term that a contract is terminable by reasonable notice may by implication be
read into the contract in appropriate circumstances. However, that case too
concerned a contract that was silent on its duration . In Transnet Ltd v
Rubenstein 2006 (1) SA 591 (SCA) the SCA declined to imp ute into a
contract a tacit term governing termination where the contract itself was not
silent on duration but was terminable on the happening of an uncertain
future event (see paragraphs 13 and 19).
[30] Finally, it was contended with reference to Beadica 231 CC and
Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC) that the
constitutional values of fairness, reasonableness and justice that infuse the
law of contract support the applicant’s proposed construction of clause 4.1.
[31] Beadica is not however authority for the proposition that a court can
read into a contract a clause that is at odds with its plain terms solely on the
basis of the recognised values. It dealt with the instances in which a court
might refuse to enforce contractual provisions on grounds of unfairness. It s
key findings were that ‘abstract values do not provide a free -standing basis
upon which a court may interfere in contractual relationships’ (paragraph 79)
and that the principle of pacta sunt servanda – that contracts freely and
consciously entered into must be honoured – itself gives effect to the ‘central
constitutional values of freedom and dignity’ (paragraph 83).
[32] On the view that I have taken, that clause 4.1 of the Addendum did
not entitle the applicant to one month’s written notice of the date on which
the replacement contract would be in place , it is unnecessary to address the
City’s alternative argument that the email of 18 June 2026, in which the
applicant was advised that the City was ‘expecting 1[...] to only be extending
by 1 month and closing off on 31 July 2026’ constituted such notice. Suffice
to say that in my view a communication of an expectation of an end date
would generally not suffice to give a counter -party notice of an actual end
date.
[33] The applicant did not establish a clear right to one month’s notice of
the commencement of the replacement contract . If it had established such a
right, the City’s stated intention to implement the replacement contract on 1
August 2026 would have grounded a reasonable apprehension of harm to
that right. Urgent interdictory relief would also have been the only adequate
remedy available to the applicant. However, my finding that no clear right
has been established is dispositive of the applicant’s case as a final interdict
cannot be granted unless all three requisites are met.
Conclusion and costs
[34] I concluded that the applicant had failed to meet the requirements for
the relief that it sought and that it was appr opriate that the applicant should
be ordered to pay the costs of the application.
_________________________
ML NORTON
ACTING JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For the applicant: DC Joubert SC
Instructed by: Reid Attorneys Inc.
c/o Halday Attorneys
Cape Town
For the first and
second respondents: R Williams SC
R Matsala
Instructed by: Fairbridges Attorneys
Cape Town