REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2026-107715
(1) REPORTABLE:~ / NO
(2) OF INTEREST TO~T JUDGES: NO
(3) REVISED: NO
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DA TE SIGNATURE
In the matter between:
COMPLIANCE AND SECURITY ADVISORY SERVICES (PTY) LTD Applicant
And
CITY OF EKURHULENI METROPOLITAN MUNICIPALITY Respondent
Case No: 2026-107715
FURMANAJ
INTRODUCTION
APPLICATION FOR LEAVE TO APPEAL
[1] On 28 May 2026 I granted interim relief in Part A of an urgent two-part application brought
by the applicant, Compliance and Security Advisory Services (Pty) Ltd ("CSAS") .
[2] The relief operates pending the final determination of the review proceedings in Part B. In
material part, the first to fourth and eighth respondents were interdicted from implementing,
enforcing or giving effect to a restriction decision dated 29 April 2026 ("the Restriction Decision").
The fifth respondent was interdicted from recording, listing or maintaining CSAS and/or its
directors on the National Treasury Database of Restricted Suppliers pursuant to that decision.
[3] Conditional restorative relief was also granted. To the extent that a Treasury listing had already
occurred, the fifth respondent was directed to reverse it pending Part B. To the extent that CSAS
had been removed from the Municipality's supplier database solely pursuant to the Restriction
Decision, the first respondent was directed to restore its status pending Part B.
[4] The first to fourth and eighth respondents, to whom I shall collectively refer as "the
Municipality", now seek leave to appeal against the whole of the judgment and order, to the
Supreme Court of Appeal, alternatively to a Full Court of this Division.
[5] The Municipality advances four principal grounds. In summary, it contends that:
5.1 the Court erred in relying upon National Treasury Instruction Note 3 of 2021/2022 ("the
Instruction Note"), which was issued under the Public Finance Management Act 1 of 1999
("the PFMA"), rather than the statutory and regulatory framework applicable to
municipalities under the Local Government: Municipal Finance Management Act 56 of 2003
("the MFMA");
5.2 the order impermissibly restrains the Municipality in the performance of statutory and
constitutional duties, particularly those said to arise from regulation 38 of the Municipal
constitutional duties, particularly those said to arise from regulation 38 of the Municipal
Supply Chain Management Regulations and findings of the Auditor-General;
5.3 the restorative portions of the order produce effectively irreversible consequences and expose
municipal officials to potential liability under sections 171 and 173 of the MFMA; and
5.4 the requirements for interim interdictory relief, properly considered in the light of National
Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223
(CC) ("OUTA"), were not established.
[6] There is a prior question. The order sought to ~e appealed against is interlocutory. It is
accordingly necessary to determine whether the interests of justice require it to be treated as
appealable at this stage.
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[7] There are consequently four broad enquiries:
7.1 whether the interim order is appealable;
7.2 where the decision does not dispose of all the issues in the case, whether an appeal would lead
to a just and prompt resolution of the real issues between the parties as contemplated by
section 17 ( 1 )( c) of the Superior Courts Act 10 of 2013;
7.3 whether there are reasonable prospects that an appellate court would materially alter the order;
and
7.4 whether there is some other compelling reason for an appeal to be heard.
THE TEST FOR LEA VE TO APPEAL
[8) Section l 7(1)(a) permits leave to appeal only where the judge concerned is of the opinion that
the appeal would have a reasonable prospect of success or that there is some other compelling
reason why the appeal should be heard.
[9] In Ramakatsa and Others v African National Congress and Another [2021) ZASCA 31 the
Supreme Court of Appeal explained that the enquiry is whether, upon a dispassionate consideration
of the facts and law, another court could reasonably arrive at a different conclusion. The prospects
must not be remote and there must be a sound rational basis for concluding that there is a
reasonable chance of success.
[10) The parties do not materially differ concerning that test. The question is its application to this
case.
[11) Section 17(1)(c) is also directly engaged. The order under consideration does not dispose of
all the issues in the case. Part B remains pending. It follows that an appeal must, in addition, lead
to a just and prompt resolution of the real issues between the parties.
APPEALABILITY
[12) The traditional attributes identified in Zweni v Minister of Law and Order 1993 (1) SA 523
(A) are no longer applied as an inflexible checklist. Decisions including International Trade
Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC), City of
Tshwane Metropolitan Municipality v Afriforum and Another 2016 (6) SA 279 (CC), United
Tshwane Metropolitan Municipality v Afriforum and Another 2016 (6) SA 279 (CC), United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2023 (1)
SA 353 (CC), and MEC for Economic Development, Gauteng and Another v Vilakazi and Others
[2024) ZASCA 126 establish that the overarching enquiry is whether the interests of justice require
an interlocutory order to be appealable.
[13] The Zweni considerations nevertheless remain relevant. So do the immediate practical effect
of the order, prejudice to the parties, the nature of the public power affected, the danger of
piecemeal ~itigation and the extent to which an appeal would advance rather than delay the final
determination of the dispute.
[14) The order made in Part A is expressly temporary. Every substantive component of the order
operates only pending the final determination of Part B.
Case No: 2026-107715
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[15] The order does not review or set aside the Restriction Decision. It does not finally determine
that the Restriction Decision is unlawful. It does not finally determine whether CSAS or any of its
directors committed fraudulent or corrupt conduct. Nor does it prevent the Municipality from
taking lawful steps against CSAS should it be entitled to do so.
[ 16] The final legality of the Restriction Decision remains wholly open for determination in Part
B.
[ 17] The order therefore disposes of no portion of the substantive review relief claimed in Part B
and makes no final determination of the parties' rights in the review.
[18] I accept that this does not by itself determine appealability. An interim order may, in an
appropriate case, be appealable notwithstanding the absence of the traditional Zweni attributes.
[19] I also accept the Municipality's submission that the order has immediate effect. That is
particularly so in relation to order 2.4, which may require CSAS to remain eligible to participate
in the Municipality's procurement processes.
[20] But immediate effect is not synonymous with final effect, nor does every immediate
consequence of an interim interdict make an interlocutory appeal necessary in the interests of
justice.
[21] The Municipality contends that CSAS may tender for municipal work; that its tender may
then have to be evaluated; and that, if it scores the highest points, a further contract may have to
be awarded to it before Part B is determined.
[22] Those consequences are contingent. The order itself awards CSAS no contract, confers no
entitlement to an award and directs the Municipality neither to accept a tender nor to make any
payment to CSAS.
[23] There is no identified contract which the Municipality is presently compelled by the order to
award to CSAS.
[24] More fundamentally, the order does not prevent the Municipality from combating fraud or
abuse in its supply-chain management system. It restrains the implementation of one particular
abuse in its supply-chain management system. It restrains the implementation of one particular
restriction decision pending judicial determination of its lawfulness.
[25] Nor does it prevent a lawful restriction process from being undertaken should the Municipality
otherwise be entitled to do so.
[26] The position is materially different from that considered in Vilakazi. There the order reinstated
persons to the board of a statutory entity and prevented the responsible member of the executive
from appointing persons in their place. The order directly affected the constitution and governance
of the statutory body.
[27] Here, no person is appointed to public office, no office-bearer is displaced, no organ of state
is prevented from functioning and no municipal policy is suspended. CSAS remains, provisionally,
eligible to participate in procurement processes.
Case No: 2026-107715
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[28] The decision of the Supreme Court of Appeal in Cyril and Another v Commissioner for the
South African Revenue Service [2024] ZASCA 32 also illustrates the importance of considering
whether an interlocutory appeal would fragment proceedings without disposing of the underlying
dispute. The fact that an order has immediate effect does not, without more, establish that justice
requires an appeal before the principal proceedings are determined.
THE RULE 53 RECORD AND SECTION 17(1)(c)
[29] There has been a material procedural development since judgment was delivered.
[30] The Municipality delivered the Rule 53 record on 14 July 2026. CSAS has thereafter taken
steps contemplated by Rule 53(4) in relation to Part B.
[31] The significance of that development must be carefully defined.
[32] I do not have regard to the contents of the Rule 53 record for the purpose of retrospectively
dete~g whether the interim order was correctly granted on 28 May 2026.
[33] The correctness of the Part A order must be detennined upon the material that served before
the Court when that order was made. A subsequently produced Rule 53 record cannot
retrospective ly supply an evidential foundation which was absent at the time.
[34] I accordingly do not rely upon the contents of the record to supplement or repair the reasoning
in the principal judgment.
[35] The procedural fact that the record has now been delivered is, however, relevant to the present
enquiry under section 17 ( 1 )( c ), to the interests of justice and to the practical effect of a proposed
interlocutory appeal.
[36] Part B has materially advanced since the Part A hearing. The decision-making record is now
available and the review can proceed through the remaining Rule 53 process towards final
determination.
[37] The real dispute between the parties is whether the Restriction Decision is lawful.
[38] That question can be finally decided only in Part B. An appeal against the interim order cannot
finally decide it.
finally decide it.
[39] The Municipality submits that there would be no piecemeal adjudication because an appeal
would concern the requirements for interim relief whereas Part B concerns review.
[ 40] In the circumstances of this case that distinction is not convincing.
[ 41] The Municipality's grounds of appeal themselves require substantial consideration of the very
matters which lie at the heart of Part B: the legal source of the restriction power; the statutory and
contractual framework applicable to its exercise; the legal significance of the Auditor-General's
findings; the existence of the jurisdictional prerequisites for restriction; and the procedural
lawfulness of the process.
Case No: 2026-107715
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[42] An appellate court considering the prima facie-right component of the interim interdict would
accordingly be invited to traverse substantially the same legal terrain which the review court must
finally determine.
[43] It would do so for the purpose of deciding only whether interim relief should have operated
pending that final determination.
[44] That is precisely the type of fragmentation which section 17(l)(c) is intended to avoid.
[ 45] There is also a real prospect that Part B may be determined before an appeal against the
interim order can be brought to finality. If that occurs, the interim order will have lapsed by its
own terms and the proposed appeal may have little or no practical effect.
[ 46] The more direct route to a just and prompt resolution is therefore the final determination of
Part B.
[ 4 7] I am not satisfied that section 17 ( 1 )( c) has been met.
THE FIRST GROUND: THE NATIONAL TREASURY INSTRUCTION NOTE
[48] The Municipality's first ground is that the Court incorrectly relied upon National Treasury
Instruction Note 3 of 2021/2022, issued under the PFMA, when the Municipality is governed by
the MFMA and the municipal supply-chain management framework.
[ 49] CSAS accepts for purposes of the present application that the Instruction Note was issued
under the PFMA and does not seek to sustain the interim order on the proposition that the
Instruction Note itself imposes obligations upon the Municipality .
[50] It is unnecessary for me, in this application for leave to appeal, finally to determine the proper
reach of the Instruction Note.
[51] I shall assume in the Municipality's favour, for present purposes, that its principal legal
criticism is correct and that the Instruction Note does not itself bind the Municipality.
[52] That assumption does not dispose of the matter.
[53] The prima facie-right finding in the principal judgment did not rest on a single consideration.
The judgment expressly stated that several considerations contributed to the conclusion.
The judgment expressly stated that several considerations contributed to the conclusion.
[54] The first concerned the procedural requirements of the Instruction Note.
[55] A further consideration concerned the authority of the decision-maker, including under the
applicable municipal legislative framework.
[56] Most importantly, the judgment separately identified the question whether the threshold of
proven corrupt or fraudulent conduct necessary to justify restriction had been satisfied.
[57] That latter consideration did not depend upon the proposition that the PFMA Instruction Note
binds the Municipality.
[58] It arose from the instruments upon which the Municipality itself relied in support of the
termination and restriction process.
Case No: 2026-107715
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[59] The Municipality's grounds of appeal do not engage that finding on its merits. Its heads submit
that there exists "prima facie evidence of fraudulent misrepresentation".
[60] That proposition does not answer the question identified in the principal judgment. The issue
there was whether the threshold of proven corrupt or fraudulent conduct upon which the restriction
power was said to depend had been satisfied.
[61] A contention that prima facie evidence exists is not the same contention as one that the
requisite conduct has been proved to the standard required by the instrument conferring the power.
[62] No sufficient basis has been advanced in the application for leave to appeal for concluding
that an appellate court would disturb that independent basis for the prirna facie-right finding.
[63] An appeal lies against an order, not merely against particular reasons advanced for that order.
[64] Consequently, even if the Municipality were to persuade an appellate court that the Instruction
Note was inapplicable to it, it has not demonstrated a reasonable prospect that this would result in
the interim order being set aside.
[65] I emphasise again that this is not a final determination of the merits of any of these questions .
They remain for Part B.
THE SECOND GROUND: OUTA, REGULATION 38 AND THE AUDITOR-GENERAL
[66] The second ground is that the order prevents the Municipality from performing peremptory
statutory duties and insufficiently recognises the constitutional significance of the Auditor
General's findings.
[67] The Municipality places substantial reliance upon OUTA and the caution which courts must
observe before restraining the exercise of public power.
[68] That caution is unquestionably important.
[69] It was, however, expressly considered in the principal judgment. The Court recorded that it
was mindful of OUT A, and considered that the relief was temporary and preservative, made no
was mindful of OUT A, and considered that the relief was temporary and preservative, made no
final determination of lawfulness, and did not prevent a lawful restriction process from being
pursued .
[70] The complaint is therefore not that OUTA was ignored. The Municipality disagrees with the
weight attributed to the competing considerations .
[71] OUTA does not establish that public power can never be temporarily restrained. Nor did it
replace the ordinary requirements of interim interdictory relief with an absolute prohibition. It
requires the Court to apply those requirements with proper regard to the constitutional allocation
of public power and, in particular, to weigh the harm which an interdict may occasion to the
exercise of governmental functions.
[72] That enquiry was undertaken.
[73] The integrity of municipal procurement and the prevention of fraud are matters of obvious
public importance .
Case No: 2026-107715
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[74] But the Municipality's argument goes further. It characterises regulation 38 as creating a
peremptory duty to implement this particular Restriction Decision and to procure the national
restriction of CSAS.
[75] On the material presented, that proposition is not established.
[76] Regulation 38 contains measures aimed at combating abuse of the supply-chain management
system. The existence of those obligations does not itself resolve whether this particular restriction
was lawfully made, whether its jurisdictional requirements were met, or whether the procedure
followed was lawful.
[77] Those are precisely the matters which Part B must determine.
[78] The Municipality also relies on the constitutional status of the Auditor-General. Nothing in
the interim order purports to set aside, suspend or invalidate any finding of the Auditor-General.
[79] The Auditor-General is the seventh respondent and has not sought leave to appeal. No relief
in the order restrains the Auditor-General in the performance of its constitutional functions .
[80] Moreover, the Municipality's own formulation of the audit findings refers to findings of non
compliance and irregular exp,enditure. The legal consequences of those findings, and the extent to
which they establish any prerequisite for restriction, remain matters for adjudication. They do not
by themselves demonstrate that a ten-year restriction of national effect was peremptorily required.
[81] I accordingly find no reasonable prospect of success on the second ground.
THE THIRD GROUND: RESTORATIVE RELIEF
[82] The third ground concerns orders 2.3 and 2.4.
[83] At the outset, order 2.3 is directed to the Director-General of National Treasury, the fifth
respondent. The fifth respondent has not applied for leave to appeal.
[84] As regards order 2.4, its actual terms are significant.
[85] Restoration is required only to the extent that CSAS's removal from the Municipality's
[85] Restoration is required only to the extent that CSAS's removal from the Municipality's
supplier database occurred pursuant solely to the Restriction Decision dated 29 April 2026.
[86] The relief is therefore conditional. It does not compel restoration if some independent lawful
basis exists for CSAS's exclusion.
[87] It is also temporary. It endures only until Part B is finally determined.
[88] I am unable to accept that this gives CSAS the full practical benefit of a successful review.
[89] A successful review would finally set aside the Restriction Decision. The interim order does
no such thing.
[90] If CSAS fails in Part B, the interim order lapses and the Restriction Decision may thereafter
operate in accordance with the final judgment.
[91] Nor does interim eligibility to submit tenders constitute an irreversible benefit. Eligibility to
compete is not an award of public work.
Case No: 2026-107715
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[92] The submission that compliance with order 2.4 exposes municipal officials to criminal
liability under sections 171 and 173 of the MFMA is also unpersuasive.
[93] No authority has been identified for the proposition that an official incurs criminal liability
by complying with an extant order of the High Court.
[94] If the Municipality considers that compliance creates some genuine statutory difficulty, that
may bear upon the expedition with which Part B should proceed. It does not establish a reasonable
prospect that the interim order will be overturned on appeal.
THE FOURTH GROUND: REQUIREMENTS FOR INTERIM RELIEF
[95] The fourth ground attacks the requirements for interim interdictory relief generally.
[96] The first proposition advanced is that an interdict prevents future conduct and cannot be
directed against a decision which has already been made.
[97] That proposition does not address the relief which was actually sought and granted.
[98] The principal judgment expressly distinguished the historical Restriction Decision from its
future implementation.
[99] It was common cause when Part A was decided that the contemplated National Treasury
listing had not yet occurred.
[100] The Restriction Decision itself contemplated future listing.
[101] The conduct restrained by the order was accordingly the implementation, enforcement and
national consequences of the Restriction Dedsion . It was preventative relief directed at future
conduct.
[102] The second proposition is that CSAS established no substantive right beyond a right to
review.
[103] I do not agree.
[104] The prima facie case was not simply that CSAS was entitled to approach a court.
[105] It concerned the applicant's entitlem ent to lawful, reasonable and procedurally fair
administrative action and its asserted right not to be subjected, pending judicial scrutiny, to the
immediate national consequences of a restriction decision shown on the papers to be arguably
unlawful.
unlawful.
[106] The judgment identified concrete grounds upon which the lawfulness of that decision was
placed in issue. Those included authority, procedural regularity and the threshold of proven
fraudulent or corrupt conduct.
[ 107] The threatened harm was likewise not abstract.
[108] The Restriction Decision contemplated exclusion from public procurement on a national
basis for ten years.
Case No: 2026-107715
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[109] The fmding of irreparable harm was therefore based upon the nature, duration and breadth
of the restriction contemplated by the decision itself.
[110] I remain unpersuaded that there is a reasonable prospect that an appellate court would hold
that the apprehension of harm was merely speculative.
[111] As to the balance of convenience, the principal judgment expressly recognised the public
importance of procurement integrity.
[112] It nevertheless concluded that limited preservation pending review caused less prejudice
than permitting a ten-year national restriction to take effect before its legality could be determined.
[113] Importantly, the Municipality was required to award nothing to CSAS under the order.
[114] The Municipality remained able to administer its supply-chain management system,
investigate misconduct and take lawful action. What was temporarily restrained was the
implementation of the impugned Restriction Decision.
[115] In my view, the Municipality has not demonstrated a material misdirection in that weighing
exercise giving rise to a reasonable prospect that an appellate court would interfere.
THE INDEPENDENT FINDING
[116] There is a further consideration which cuts across the four grounds and which is, in my view,
important.
[117] As already stated, the prima facie-right fmding rested upon several considerations.
[ 118] One of them was the issue whether the threshold requirement of proven corrupt or fraudulent
conduct necessary to justify the restriction had been satisfied.
[ 119] That finding stands independently of the dispute concerning the Treasury Instruction Note.
[120] It is not answered by the Auditor-General's constitutional status.
[121] It is not answered by the conditional restoration of CSAS to a supplier database.
[122] And it is not answered by the proposition that courts must exercise restraint when interdicting
public power.
[123] The Municipality was required, in seeking leave against the whole order, to demonstrate a
reasonable prospect that the order itself would be altered.
[124] Where an independent foundation sufficient to sustain the prima facie-right finding remains
materially unanswered, that requirement has not been satisfied.
OTHER COMPELLING REASONS
[125] The Municipality alternatively relies upon section 17(1)(a)(ii).
[126] It submits that an important question of public law arises, namely whether a municipality
may be interdicted from implementing a restriction decision where it has statutory obligations to
combat abuse of its supply-chain management system.
Case No: 2026-107715
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[127] The question, formulated at that level of generality, does not arise for determination.
[128] There is no dispute that municipalities bear important constitutional and statutory obligations
in relation to procurement integrity.
[129] Equally, there is no dispute that courts must be particularly cautious before restraining the
exercise of public power.
[130] The issue in this matter is narrower: whether, on the particular facts and pending a review
which has now materially advanced, the implementation of this particular Restriction Decision
should remain temporarily restrained.
[131] The governing principles have been addressed repeatedly in decisions including SCA W,
OUTA, Afriforum, EFF v Gordhan and Vilakazi.
[132] Their application is necessarily fact-sensitive.
[133] No conflicting line of authority requiring resolution by an appellate court has been
demonstrated.
[134] Nor has it been shown why an immediate appeal against the interlocutory order, rather than
determination of Part B upon the Rule 53 record, is required to resolve any broader question of
law.
[135] As Ramakatsa makes clear, the merits remain important even where an alleged compelling
reason is advanced.
[136] I am accordingly not persuaded that there is some other compelling reason within the
meaning of section 17(l)(a)(ii) .
CONCLUSION
[137] The order of 28 May 2026 is interlocutory in both purpose and operation. It finally
determines none of the review issues and disposes of none of the relief claimed in Part B.
[138] I accept that it has immediate consequences. Those consequences are, however, limited and
temporary and do not, in the circumstances of this case, render immediate appellate intervention
necessary in the interests of justice.
[139] The Rule 53 record has now been delivered. I have not relied upon its contents to sustain the
Part A order. Its delivery is nevertheless relevant to the present procedural position: the final
review has materially advanced and provides the direct means by which the legality of the
Restriction Decision can be finally determined.
[140] An interlocutory appeal would require substantial reconsideration of issues central to that
review without finally resolving them.
[ 141] It would accordingly produce piecemeal adjudication and would not lead to a just and prompt
resolution of the real issues between the parties as required by section 17(1)(c).
Case No: 2026-107715
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[ 142] In any event, and even if the order is treated as appealable, I am not satisfied that any of the
four grounds establishes a reasonable prospect of success.
[143] In particular, the criticism concerning the Instruction Note does not engage the independent
finding concerning the threshold of proven corrupt or fraudulent conduct.
[144] No compelling reason requiring an appeal at this stage has been established .
COSTS
[145] There is no reason why costs should not follow the result.
[146] The application for leave to appeal has involved questions of public procurement law,
administrative law, the appealability of interlocutory orders, the separation of powers and the
interrelationship between different statutory and regulatory instruments. The consequences for the
parties are substantial, involving a restriction potentially operating nationally for ten years.
[147] In those circumstances the employment of two counsel was reasonable.
[148] Having regard to the complexity, importance and extent of the matter, I am satisfied that
costs on scale C are warranted.
ORDER
[149] In the result, I make the following order:
1. The application for leave to appeal is dismissed.
2. The First, Second, Third, Fourth and Eighth Respondents are ordered,jointly and severally, the
one paying the others to be absolved, to pay the costs of the application for leave to appeal.
3. Such costs shall • elude the costs of two counsel where so employed and shall be taxed on scale
C.
RFURMANV
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
Date of hearing: 11 August 2026
Date of judgment: 24 August 2026
Case No: 2026-107715
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