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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 24-146973

 

In the matter between:                                                                                            

 

MATAMELA ENTERPRISE CC	Applicant
And
GEORGE MUNICIPALITY	First Respondent
MEC FOR INFRSTRUCTURE, CAPE TOWN	Second Respondent
SOUTH AFRICAN LOCAL GOVERNMNET ASSOCIATION (SALGA)	Third Respondent
NOKHANYS SERVICES (PTY) LTD	Fourth Respondent
MEC FOR LOCAL GOVERNMENT, ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING	Fifth Respondent

Heard: 20 December 2024

Delivered: Electronically on 28 January 2025     

  

JUDGMENT

  

LEKHULENI J

 

Introduction

 

[1]        This is an urgent application for an interdict. The application is divided into two parts, Part A and B. In Part A, the applicant seeks an order that, pending the final determination of the review application in Part B, the first respondent ("the Municipality") be interdicted from taking any further steps towards implementing the appointment of a building contractor to construct 100 subsidised houses in Thembalethu in accordance with Contract Number: HS 017/24 ("the tender").

 

[2]        The applicant also seeks an order that the Municipality be interdicted from appointing the fourth respondent as the preferred bidder and giving effect to the tender. In addition, the applicant seeks an order that the Municipality be directed to re-evaluate the tender bidding of the applicant by properly assessing the years of experience of the applicant's Construction Manager as stated in his CV, particularly the position he has held from 2004 to 2011 as a site agent.

 

[3]        In Part B, the applicant seeks an order that the decision taken by the Municipality on 19 September 2024 to award the tender to the fourth respondent be declared unlawful and that it be reviewed and set aside in terms of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA"), alternatively the principle of legality. The applicant also seeks an order in Part B that any award and or subsequent service level agreement that may have been concluded between the Municipality and the fourth respondent pertaining to the tender be declared unlawful and that it be reviewed and set aside. This Court is only enjoined in deciding Part A of this application.

 

The Applicant’s Case

 

[4]        The George Municipality advertised a tender on 11 July 2024, calling upon bidders to submit their bidding documentation for the appointment of a building contractor to construct 100 subsidised houses in Thembalethu. The closing date of the said tender was 16 August 2024. Subsequent thereto, 26 bidders submitted their bidding documentation. The applicant asserts that it submitted the required documentation together with other bidders. The evaluation process was conducted, resulting in a decision to award the tender to Nokhanya Services (Pty) Ltd, the fourth respondent in this matter. An official intention to award the tender to the fourth respondent was communicated to the respective bidders.

 

[5]        The applicant stated that the tender award process occurs in two phases. First, an intention to award the contract to a specific bidder is announced. Second, a fourteen-day (14) period is allowed during which any bidding party can object to the intended award.

 

[6]        During the fourteen-day period objections were allowed to be noted, the applicant objected to awarding the tender to the fourth respondent. The applicant believed that the Municipality acted irrationally in its evaluation process in awarding the tender to the fourth respondent. The reason given to the applicant by the Municipality for not awarding the tender to the applicant was that the applicant failed to comply with the requirements of the tender. The tender requirement of the Municipality requires that a bidder for the tender must have a construction manager with 10 years of experience in construction.

 

[7]        The applicant states that the Municipality rejected the applicant's application and alleged that the CV of the applicant's Construction Manager, Mr T Fhumulani, attached to the applicant's tender documents, revealed that Mr Fhumulani only had 8 years of building projects experience. In the notice informing the applicant of the reasons for rejecting his tender application, the Municipality asserted that the applicant failed to submit the required information and could, therefore, not be considered further in the bidding evaluation process.

 

[8]        The applicant emphasised that on the tender documentation it submitted, there was a returnable document on which the applicant listed five projects within the provided spaces, capturing a portion of its Construction Manager’s experience. Due to the limited space on the returnable document, it was not possible to detail Mr Fhumulani’s relevant project experience over the past ten years within this section alone. To address this problem, the applicant included in its tender documents the CV of Mr Fhumulani, its Construction Manager, which provided a complete record of his professional experience, authenticating that he had over 10 years of experience in construction management.

 

[9]        According to the applicant, limiting the assessment to the returnable form’s constrained layout without considering the supplementary documentation resulted in an inaccurate and incomplete evaluation of Mr Fhumulani's experience. The applicant asserted that the Municipality excluded Mr Fhumulani's 2004 to 2011 experience as a site agent, which appears on his CV. If this experience had been considered, the Municipality would have possibly awarded the tender to the applicant as a successful tenderer. The applicant averred that prior to the 2014 Regulations, a Construction Manager was referred to as a site agent.

 

[10]      In the applicant's view, Mr Fhumulani's experience gained from 2004 to 2011 had to be considered, and the fact that it was not considered proves that the process was irregular and must be reviewed and set aside by this Court. Had the respondent considered Mr Fhumulani's 2004 to 2011 experience, the applicant asserts that it would have met the 10-year experience criteria and would have possibly been awarded the tender. The applicant stated that Mr Fhumulani has 17 years of experience as a Construction Manager.

 

[11]      According to the applicant, the failure to adequately consider its Construction Manager’s experience despite demand and an Appeal of the applicant demonstrates an intention on the part of the Municipality to unlawfully deprive the applicant of what would have been a lawful appointment. Furthermore, the applicant contended that the Municipality's memo stating that the applicant’s reference letter from the Western Cape Department of Human Settlement was not specific was incorrect. The applicant refuted these allegations and stated that it included an adequate reference letter from the Western Cape Department of Human Settlement as part of its tender documents submitted to the Municipality.

 

[12]      The applicant disputed the Municipality's claims set out in the rejection letter. In the letter rejecting the applicant’s appeal, the Municipality pointed out that Mr Fhumulani's CV listed him as a Senior Project Manager, while some of the applicant's bid documents referred to him as a Construction Manager. The applicant emphasised that Mr Fhumulani's experience as both a Construction Manager and a Senior Project Manager was crucial, as senior project management experience is necessary for this tender.

 

[13]      The applicant asserted that the process the Municipality invoked is invalid and unlawful and, as such, establishes the grounds for review listed in section 6 of PAJA. The applicant contended that the process was flawed, affecting the validity of the entire tender process. The non-consideration of Mr Fhumulani's experience offends the right to just administrative action, which is lawful, reasonable and procedurally fair and thus is subjected to review based on PAJA, alternatively, the principle of legality. According to the applicant, this would ensure that the applicant's right in terms of section 33 of the Constitution of the Republic of South Africa is protected.

 

[14]      The applicant further asserted that the Municipality failed to conduct the entire bidding process in line with the constitutional provisions set out in section 217 of the Constitution, specifically concerning the evaluation of the applicant's tender documents. In the applicant's view, the Municipality manipulated the tendering process to bring about an unlawful favour of another bidder. Based on these concerns, the applicant respectfully pleaded with this Court to interdict the Municipality from making the final award to the fourth respondent pending the review application in Part B of this application. To this end, the applicant prayed that the court grant the interdictory relief sought in the Notice of Motion.

 

The Municipality’s Case

 

[15]      The Municipality opposed the applicant's application and raised several preliminary issues. The Municipality asserted that the applicant has failed to make out its case on the papers for condonation of its noncompliance with the Uniform Rules of Court on service and Rule 41A(2), thereby rendering the proceedings a nullity and ineffective. The Municipality stated that the applicant's tender, which is the subject of this application, is tainted by fraud, and that had this been known at the time of the bid adjudication, the tender would have been deemed non-responsive for this reason.

 

[16]      In addition, the Municipality averred that the two tenderers, namely CHS Development CC and Ruwacon (Pty) Ltd, who were recommended as the first and the second alternative successful tenderers, ought to have been joined in this application, particularly concerning the relief sought in Part B. The Municipality also questioned the fact that the application was served on the Municipality via email without obtaining prior leave from this Court. The Municipality asserts that the applicant fails to explain why it could not have served the application on the Municipality in accordance with Rule 4(1)(a) of the Rules of Court. Thus, due to the lack of proper service, the Municipality contended that the applicant's application constitutes a nullity or ineffective and remains as such, irrespective of the Municipality's notice to oppose and the subsequent filing of an answering affidavit.

 

[17]      According to the Municipality, the deponent to the applicant's founding affidavit, Mr Mabasha, refers to himself as the applicant in this matter, notwithstanding his further averments that he is duly authorised to depose to the affidavit on behalf of the applicant and the resolution attached to the founding affidavit. In the Municipality's view, it is evident from the content of the founding affidavit and the explicit language employed by Mr Mabasha that his assertion of being the applicant carries weight as he consistently makes statements throughout his affidavit that substantiate this claim.

 

[18]      The Municipality stated that Mr Mabasha is not even a member of the applicant. The sole member, as indicated in the tender documents submitted under the name of the applicant, is Fungelelani Mulaudzi. The respondent stated further that it appears the tender was submitted under the name of the applicant under circumstances that raise strong suspicion that the applicant company has been used as a front. Based on the information provided, the Municipality contends that the applicant, along with its sole member as reflected in the CIPC records, was not the actual tenderer, contrary to what is stated in the resolution attached to the applicant's founding affidavit.

 

[19]      The Municipality referred the court to Clause C.2.14 of the Standard Conditions of Tender, which formed part of the returnable documents that had to be submitted by all tenderers. It provided as follows:

 

The tenderer accepts that tender offers which do not provide all the data of information requested, completely and in the form required, may be regarded by the employers as non-responsive.

 

[20]      The Municipality asserted that the information supplied through the CV of Mr Fhumulani, the applicant’s Construction Manager, did not comply with the dictates of clause C.2.14, and the tender was found wanting for the reasons stated in the report attached to the Municipality's letter of 06 November 2024. The Municipality further noted that from a perusal of the CV of the applicant's Construction Manager, it was patently clear that although the information contained therein may have been accurate, the applicant did not comply with the tender requirements as it was incomplete, and his construction experience could not be verified by the Municipality.

 

[21]      The Municipality contended that the applicant's Construction Manager's alleged experience for the period 2004 to 2011 was rightfully not considered as it could not be verified for reasons stated in the adjudication report following the applicant's objection to awarding the tender to the fourth respondent.

 

[22]      In the said adjudication report, the Municipality stated that the applicant had to comply with paragraph 3 of the tender eligibility criteria and provide evidence as follows: (Construction Manager (full time on site), suitably skilled and have a CV with verifiable experience as foreman on building projects with a minimum of ten years experience). In the report, the Municipality noted further that the applicant submitted a CV of its Construction Manager as part of its tender document. The projects completed by the Construction Manager were scrutinised by the Bid Evaluation Committee (BEC), and although the Construction Manager indicated 10 years of experience in construction, his experience was divided into civil engineering, maintenance and building projects.

 

[23]      The BEC only identified eight years (8) of building construction experience from the CV of the applicant's Construction Manager, which fell short of the threshold. The Municipality contended that for a project to be relevant for consideration as envisaged in paragraph 3 of the tender eligibility criteria, it had to be building works. The BEC identified building work experience completed by the applicant’s Construction Manager in the period 2009, 2010, 2011, 2012, 2015, 2016, 2019 and 2020. To this end, it concluded that the applicant failed to submit all the required information and could, therefore, not be considered.

 

[24]      The Municipality stated that it dealt with the applicant's tender in strict compliance with the law. The Municipality further opined that in failing to comply with the terms of the tender invitation, the applicant has undoubtedly brought about its own misfortune, and the resulting issues are a direct consequence of its own actions. The Municipality refuted the allegation that it had deliberately manipulated the tendering process to unlawfully favour another bidder as untrue, devoid of any factual basis, and defamatory.

 

[25]      Furthermore, the Municipality asserted that the completion of the housing project for the Municipality's constituency is of critical urgency and cannot be hindered by an opportunistic attempt to revisit the entire process, which was conducted in full compliance with constitutional requirements and the framework of the Public Finance Management Act 1 of 1999.

 

[26]      According to the Municipality, the tender process fully complied with the Five Pillars of Procurement and reflects the Municipality's commitment to exceeding the minimum standards required, ensuring the highest levels of transparency, fairness, and accountability in every aspect. The Municipality denied that the applicant suffered any prejudice from the Municipality's decision.

 

[27]      The Municipality also impugned the urgency with which this application was brought. It noted that the application was issued 36 days after the applicant was informed of the decision and provided with reasons for it. This considerable delay demonstrates a lack of urgency or diligence on the part of the applicant, undermining any suggestion that immediate relief is warranted. Furthermore, the Municipality contended that any urgency pertaining to the matter is, at best, for the applicant, self-created.

 

[28]      In addition, the Municipality contended that the applicant was made aware on 18 October 2024 of the urgency pertaining to the tender through a letter from the Municipality informing it that the tender had been awarded to the fourth respondent. The applicant was further appraised on 6 November 2024 that its objection to the award of the tender to the fourth respondent had been rejected and of the reasons thereof.

 

[29]      The Municipality stated that on 13 November 2024, the applicant was informed that the Municipality upheld its decision to reject the applicant's objection. Notwithstanding, the founding affidavit of the applicant was only signed on 11 December 2024, 28 days after 13 November 2024. Furthermore, the application was served through email to the Municipality on 12 December 2024. In its notice of motion, the applicant gave the Municipality 6 days, including the long weekend, to oppose the matter and to serve and file its answering affidavit.

 

[30]      The Municipality further asserted that the completion of the project is of critical urgency. The fifty-five (55) days that have passed since the applicant was informed that his bid was unsuccessful (on 18 October 2024) until the issue of the founding papers (on 12 December 2024), in the context of this matter, represents an unreasonable and unjustifiable delay. In the Municipality’s view, given the pressing nature of the project, any further postponement would be detrimental to the public interest and contrary to the principle of effectiveness in procurement matters.

 

[31]      The Municipality explained that the reason the applicant gave for the delay was that it was waiting for the tender documents from the Municipality so that it could attach them to its application. According to the Municipality, this explanation is feeble and implausible. In light of the fact that the applicant proceeded to institute this application without the requisite tender documents, the Municipality contends that this reason is merely an opportunistic excuse.

 

[32]      The Municipality asserted that the applicant's delay in issuing the application demonstrates an evident lack of seriousness and an intent to exploit the process rather than pursue it with diligence and urgency. The Municipality emphasised that the necessity of submitting the application for interim relief at an earlier date than its eventual filing is highlighted by several important considerations, namely: an amount of five (5) million allocated to the Municipality by the Western Cape Government: Department of Infrastructure for this project, must be utilised by April 2025. Failure to do so, will result in the reversion of these funds to the Department, causing significant financial loss and substantial delays in the completion of the housing project.

 

[33]      Furthermore, the municipality is under severe pressure to complete the project and execute its constitutional mandate to provide adequate housing for its constituents, particularly considering that there are dire shortages of housing in its jurisdiction. The granting of an interim interdict at this stage will result in profound and far-reaching prejudice, not only by delaying the ability to meet its constitutional obligation but also by prolonging the hardship faced by its constituents in desperate need of housing. Such a delay would undermine the public interest and exacerbate the housing crisis in the Municipality's jurisdiction. The Municipality applied that the applicant's application be dismissed with costs.                 

 

Preliminary Issues

 

[34]      There are two main preliminary issues in this matter: one raised by the applicant and the other raised by the Municipality. Concerning the first preliminary issue, the applicant contended that there is no proper answering affidavit before this Court as the deponent of the answering affidavit, Ms Delia Power, the Acting Director of Human Settlements, Planning and Development and Management at the George Municipality, lacks personal knowledge of the information deposed to in the answering affidavit.

 

[35]      The applicant asserted that a deponent is a witness who is testifying about information they have personal knowledge about. In the absence of such personal knowledge, the information relayed becomes hearsay. When one does not have direct knowledge of the information, the relevant person provides a confirmatory affidavit. In this case, the applicant contended that there is no confirmatory affidavit from the relevant official; therefore, there is no proper answering affidavit before this Court.

 

[36]      The second preliminary point is that of urgency raised by the Municipality. The Municipality argued that the urgency with which this matter was brought was self-created, and the matter must be struck off the roll on that ground alone. For convenience, I will deal with the applicant's preliminary point first. Thereafter, I will consider the question of urgency raised by the Municipality.

 

Is the respondent's answering affidavit defective or proper?

 

[37]      In the answering affidavit, the Acting Director of Human Settlement, Planning and Development and Property Management at the George Municipality asserted that she is duly authorised to depose to the affidavit and to oppose the application on behalf of the Municipality. In addition, the deponent stated that the facts contained therein do not fall within her personal knowledge. However, she has ascertained the correctness thereof from files pertaining to this matter under her control and supervision as Acting Director of Human Settlements, Planning and Development on Property Management. The deponent also averred that she has further verified these facts from information obtained from the officials of the Municipality who are directly involved in this matter. The deponent also stated that she believes the information communicated to her to be true and correct.

 

[38]      The deponent has been duly authorised to depose to the affidavit. She has ascertained the correctness of the facts relating to her deposition from files pertaining to this matter under her control and supervision as Acting Director of Human Settlements, Planning and Development on Property Management. Evidently, all the documents of the Municipality are under her control and supervision. In my view, the deponent acquired direct knowledge of the facts of this case from the perusal of documents under her control.

 

[39]      As the Acting Director of Human Settlement, she held complete possession and oversight of all records and documents belonging to the Municipality that are relevant to this application. These materials form the basis of the applicant's interdict application against the respondents under the above case number. In my view, in discharging her responsibility, the deponent has thoroughly examined and familiarised herself with these documents and records, ensuring she has a comprehensive understanding of their contents. She has familiarised herself with the documents and records relating to this application which are under her control and supervision.

 

[40]      While I accept that the information obtained from officials of the Municipality who are directly involved in this matter on the face of it amounts to hearsay evidence without their confirmatory affidavit, however, I am of the view that such information was verified and confirmed by the deponent from the documents in her control and found to be true and correct. The nature of the deponent's occupation suggests very strongly that she would, in the ordinary course of her duties, acquire personal knowledge of the Municipality's tender documents and all tenders submitted during the tender process.

 

[41]      Furthermore, formalism and an inflexible approach should be avoided in a case like this. The deponent to the respondent's affidavit represents the Municipality. The Municipality represents its constituency. A rigid approach in this regard would be detrimental to public interests. The Municipality is currently experiencing considerable pressure to complete the project to fulfil its constitutional mandate of providing housing for its constituents. This urgency is underscored by the critical housing shortage within its jurisdiction, as highlighted by the Acting Manager. In the circumstances, I am of the opinion that the applicant's preliminary point must fail. I will now turn my attention to the issue of urgency.

                   

Urgency

 

[42]      The legal principles applicable to the question of urgency are well-established in our law. The test for urgency emanates from the provisions of Rule 6(12) of the Uniform Rules. Rule 6(12) confers courts with a wide discretion to decide whether an application justifies enrolment on the urgent court roll based on the facts and circumstances of each case.[1] An application is urgent when an applicant cannot obtain substantial redress at a hearing in due course.[2] The degree of departure from the modes of service and time frame in the Uniform Rules must be commensurate with the urgency in each case.[3]  

 

[43]      It is important to point out that an applicant must explicitly set forth the circumstances that he believes render the matter urgent and the reasons why he claims that he cannot be afforded substantial redress at the hearing in due course. Simply put, an application is urgent when an applicant cannot obtain substantial redress in due course.[4] An applicant must strictly comply with the requirements of rule 6(12)(b), including explicitly demonstrating the urgency of the matter and explaining why substantial redress cannot be obtained later.

 

[44]      The Municipality challenged the urgency and the truncated timeframe with which this application was brought. The Municipality contended that the delay is so unreasonable and demonstrates a lack of diligence on the part of the applicant, undermining any suggestion that immediate relief is warranted. According to the Municipality, the explanation advanced by the applicant for its delay in bringing this application is feeble and insubstantial.

 

[45]      The reason for the delay advanced by the applicant is that the applicant requested its tender documents from the Municipality as it wished to use these documents in the urgent application. According to the applicant, no response was forthcoming. In addition, the applicant submitted that on 13 November 2024, it received a response holding that the Municipality stands by its decision to reject the applicant's tender bid. Subsequently, the applicant sought legal assistance. The applicant obtained legal advice to pursue the matter. On 25 November 2024, Matamela Enterprise CC (the applicant) gave the deponent of the founding affidavit the go-ahead to institute these legal proceedings.

 

[46]      Mr Mpya, the applicant’s Counsel argued in his written submission that Review applications by their very nature are urgent as they involve the fundamental principle of the rule of law and constitutional principle of just administrative action enshrined in section 33 of the Constitution. Counsel submitted that this is a classic urgent case that warrants the immediate attention of this Court more so because the Municipality has shown an appetite to litigate as the applicant was duly invited to sue them. Respectfully, I do not agree with this proposition. Whatever the nature of the claim, there must be some reason why the applicant will not be able to protect or advance their legal rights later, unless they are given specific relief now.

 

[47]      In Volvo Financial Services Southern Africa (Pty) Ltd v Adamas Tkolose Trading CC,[5] the court stated, and correctly so, in my view, as follows:

 

“[6] There is, accordingly, no class of proceeding that enjoys inherent preference. Counsel appearing in urgent court would, in my view, do well to put the concept of “inherent urgency” out of their minds. There are, of course, some types of cases that are more likely to be urgent than others. The nature of the prejudice an applicant will suffer if they are not afforded an urgent hearing is often linked to the kind of right being pursued. Spoliation is a classic example of this type of claim. Provided that the person spoliated acts promptly, the matter will nearly always be urgent. The urgency does not, though, arise from the nature of the case itself, but from the need to put right a recent and unlawful disposition. The applicant comes to court because they wish to restore the ordinary state of affairs while a dispute about the right to possess a thing works itself out. Cases involving possible deprivations of life and liberty, threats to health, the loss of one’s home or some other basic essential of daily life, such as water or electricity, destruction of property, or even crippling commercial laws are also likely to be urgent.

 

[8] The fundamental point is that a matter is urgent because of the imminence and depth of harm that the applicant will suffer if relief is not given, not because of the category of right the applicant assets.”

 

[48]      The reasons provided by the applicant for the delay in filing this application are deficient and unconvincing. As Mr van der Merwe, the respondent's Counsel, aptly noted, the applicant took 40 days to submit its application after being informed of the reasons behind the Municipality's decision. Although the applicant stated that it was waiting for the tender documents from the Municipality, the applicant instituted this application without having the relevant tender documents. The claim that the applicant could not apply in a timely manner due to awaiting the tender documents is contradicted by the fact that the application was submitted without these documents.

 

[49]      From the evidence filed, the applicant was informed on 18 October 2024 that its tender was unsuccessful and that the fourth respondent was nominated as the successful bidder. Pursuant thereto, the applicant submitted its objection to the award on the 1 November 2024, the last day of the 14-day objection period. The Municipality expeditiously responded to the applicant’s objection on 6 November 2024 with its reasons for the finding that the applicant’s tender was found to be non-responsive. Notwithstanding the Municipality’s response with reasons, on 11 November 2024, the applicant submitted a further letter requesting reasons pertaining to its Construction Manager. On 13 November 2024, the Municipality informed the applicant that a thorough explanation was provided in its letter dated 6 November 2024 and that the Municipality stood by its previous decision and deem the decision final.

 

[50]      The applicant thereafter waited a month and subsequently brought this application on an urgent basis with truncated timelines. As explained above, the main reason for the delay was that the applicant was waiting for the tender documents from the municipality. Importantly, in its replying affidavit, it became clear that the request to the Municipality for the tender documents was only made via email on 09 December 2024. The applicant waited from 13 November 2024 and proceeded to issue these proceedings urgently on 12 December 2024.

 

[51]      I repeat, these proceedings were instituted even before the tender documents were provided to the applicant. As the Municipality rightly noted, the applicant chose to move forward with the application without having the tender documents. Therefore, the claim that the delay was due to waiting for the tender documents appears to be opportunistic. In my opinion, the applicant unreasonably delayed in bringing this application. The applicant has not provided a full explanation, nor a reasonable one, for the delay in launching this application. Our courts have repeatedly held that an unexplained delay in urgent proceedings is an indicator of self-created urgency.[6] 

 

[52]      This considerable delay demonstrates a lack of urgency or diligence on the part of the applicant and undermines any suggestion that immediate relief is warranted. More so, the reasons provided for the delay are so flimsy. In fact, the delay, in my view, is self-created. The applicant had to bring its application at the first available opportunity, and its failure to do so diminished urgency.[7] Our courts have more than once made it clear that self-created urgency ought not to be entertained.[8]

 

[53]      In summary, the applicant's explanation for the delay is wholly inadequate. The applicant has failed to provide a full explanation for the significant delay in instituting this application on an urgent basis. The urgency asserted by the applicant is entirely a self-created urgency.[9] There is no good reason provided for the applicant’s failure to bring this application earlier. Accordingly, this application should ordinarily be struck from the roll.  

The Applicant’s Application on the Merits

 

[54]      Normally, the finding regarding urgency would typically lead to the applicant's interdictory application being struck off the roll. However, for the sake of completeness and certainty on the issues raised, I will consider the applicant’s application on the merits. The applicant seeks an interdict against the Municipality, pending the review application in Part B. The traditional formulation of the requirements for an interim interdict is that the applicant must establish (a) a prima facie right (b) a reasonable apprehension of irreparable harm if the interdict is not granted, (c) the balance of convenience must favour the grant of the interdict, and (d) the applicant must have no other remedy.[10]

 

Prima facie right

 

[55]      In determining whether a prima facie right has been established, the right need not be shown by a balance of probabilities. If it is prima facie established, though open to some doubt, that is sufficient.[11] The Court has a general and overriding discretion whether to grant or refuse an application for interim relief. In the present matter, in the founding affidavit, the applicant asserted a prima right to protect and enforce its right to a fair administrative action and the right to review the administrative decision of the Municipality.

 

[56]      According to the applicant, the administrative action taken by the Municipality was unfair and unreasonable and must thus be reviewed to protect the applicant's right in terms of section 33 of the Constitution read with PAJA. The applicant also argues that it has demonstrated strong prospects of success in its review application in part B and possesses significantly more than a prima facie right to the relief sought. Additionally, the applicant emphasises that its construction manager has over 10 years of relevant experience, which is a requirement for the tender. The applicant believes it was unjustly denied the tender because the Municipality failed to consider the Construction Manager's experience gained between 2004 and 2011.

 

[57]      I have considered the applicant's submission and meticulously examined the tender documents the applicant presented to the Municipality. In addition, I have also considered all the tender requirements established by the Municipality for the tender to be deemed responsive. In light of this analysis, I agree with the Municipality's contention that the applicant has, in essence, orchestrated its own misfortune. The applicant failed to adequately disclose the full years of experience of its Construction Manager.

 

[58]      It may be so that the applicant's Construction Manager has 17 years of experience, as stated in the confirmatory affidavit filed with this application, which exceeds the Municipality's threshold of 10 years. However, there are concerns regarding his construction work experience, which is set out in his CV for 2004 and 2011. The evidence from the applicant's tender documents indicates that the applicant's Construction Manager only had 8 years of experience during that timeframe, falling short of the required threshold. The applicant did not adequately disclose the necessary information for this period as specified in the terms of the tender. As a result, this lack of proper and efficient disclosure has hindered the ability of the evaluation committee to effectively verify the Construction Manager's experience. This deficiency cannot be attributed to the Municipality.

 

[59]      For clarity, the applicant states that various building works were conducted between 2004 and 2011. The applicant has listed the different projects that its Construction Manager managed during this time. Specifically, the applicant claims that between 2004 and 2011, the Construction Manager worked on projects including, amongst others, Bombela CJV, Pilanesberg Platinum Mine, building works at the Johannesburg High Court, and construction at Soshanguve South. However, the timeline for this work is unclear, as the CV does not specify when each piece was performed. It remains ambiguous whether the various work was completed in the same year or if they were done in 2008, 2009, or 2010. This information is not easily verifiable from the CV.

 

[60]      In my opinion, for the applicant’s tender to be considered responsive and to meet the eligibility criteria, it should have clearly outlined when the relevant work was performed between 2004 and 2011. This clarity would have facilitated the BEC's assessment of the experience of the applicant’s Construction Manager. The generalisation of the Construction Manager's experience in the tender documents (CV) made it challenging for the Municipality's BEC to verify his experience. Therefore, the Municipality cannot be faulted or held responsible for the applicant's ineptness. To this end, I agree with the contention made in the Municipality’s answering affidavit that the applicant’s tender documents failed to explicitly disclose the necessary information for the period 2004 to 2011 as required by the terms of the tender which prevented the verification of the Construction Manager’s experience.

 

[61]      The applicant has submitted a confirmatory affidavit from its Construction Manager, stating that he has 17 years of experience. In the applicant's application, particularly in the replying affidavit, the applicant seeks an order for the interdict to be granted so that the experience of its Construction Manager can be properly re-evaluated. The applicant believes that re-evaluating the Construction Manager's CV will not take long and that resolving this matter speedily will allow the Municipality to plan effectively. I do not agree with this submission.

 

[62]      This tender affects 200 recipients of homes along with their families. The Municipality has indicated that the five million allocated to it by the Western Cape Government's Department of Infrastructure for this project must be utilised by 30 April 2025. Failure to do so will result in these funds being returned to the Department, leading to significant financial loss and substantial delays in the completion of the housing project. In its answering affidavit, the Municipality stated that it is under considerable pressure to complete the project to fulfill its constitutional mandate to provide adequate housing for its constituents, especially given the severe housing shortage within its jurisdiction.

 

[63]      In my opinion, the Municipality cannot be held responsible for the applicant's incompetence or sloppiness. Given the circumstances, I believe that granting an interim interdict at this stage would lead to significant and far-reaching consequences. It would not only hinder the Municipality's ability to fulfill its constitutional obligations but also prolong the hardships faced by its residents who are desperately in need of housing. Such a delay would undermine the public interest and worsen the housing crisis within the Municipality's jurisdiction. In this context, the Constitutional Court has repeatedly emphasised that Courts must be astute in not usurping the functions of administrative bodies. The Court stated:

 

“In treating the decisions of administrative agencies with appropriate respect, a Court is recognising the proper role of the Executive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A Court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field.”[12]

 

Irreparable Harm

 

[64]      The applicant is obliged to demonstrate that it has a well-grounded apprehension of irreparable harm if the interim relief is not granted. In this instance, the applicant contends that the actions of the Municipality have resulted in significant suffering and detriment to the applicant, as the experience of its Construction Manager was not adequately assessed. Moreover, the applicant argues that the failure to consider the Construction Manager's extensive experience, which exceeds ten years, has disproportionately affected the applicant's prospects of success. The applicant maintains that, should the court fail to review and set aside the tender, it will incur further prejudice.

 

[65]      I must stress that ever since the decision of the Constitutional Court in National Treasury and Others v Opposition to Urban Tolling Alliance and Others,[13] (‘OUTA’), an applicant cannot merely rely on a right of review because review rights do not require any preservation pendente lite. To succeed with interim interdictory relief, some rights other than a right to review must be threatened with irreparable harm.[14] Simply put; to obtain a temporary interdict, it is no longer enough for an applicant to contend that it has a good review case. In terms of OUTA, the prima facie right that an applicant must establish is not merely the right to approach a court to review an administrative decision. It is a right to which irreparable harm will ensue if not protected by an interdict. For completeness, in paragraph 50, the court stated:

 

“An interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm. The right to review the impugned decisions did not require any preservation pendente lite.” (my emphasis).

 

[66]      In Khoin and Others v Jenkins and Others and a related matter,[15] the full court of this Division applied OUTA to an application for a construction interdict. It held that ‘protecting the right to review the unlawful decisions cannot form the basis for interim relief’.[16] The court noted that to interdict building work pending a review, a prima facie right is not established merely if grounds of review show prospects of success. The full court found that an applicant for a construction interdict must now satisfy the jurisdictional requirement of demonstrating that the development will irreparably harm a substantive right other than the right to review.

 

[67]      Applying these principles to the present case, I am of the view that the applicant is not entitled to an interim interdict as it has failed to show that its rights are subject to imminent or irreparable harm even if the review ultimately succeeds as contemplated in OUTA. As stated above, an applicant cannot rely on the right of review because review rights do not require any preservation pendente lite. In Greenpoint Residence and Ratepayers Association and Others v Gartner and Others (supra – note 14) the court stated that there could be no consideration of irreparable harm without a prima facie right to be protected from future irreparable harm. In my view, the applicant has not shown a prima facie right to be protected from future harm.

 

The balance of convenience

 

[68]      In determining the balance of convenience, the court must assess the harm that the Municipality may suffer if the interim order is granted with the prejudice the applicant will face if it is refused. In addition, in a case such as this, the balance of convenience inquiry must thoroughly probe whether and to what extent the restraining order will probably intrude into the exclusive terrain of another branch of government. The enquiry must properly regard what may be called separation of powers harm.[17]

 

[69]      It is common cause that the Municipality has the constitutional and statutory mandate and authority to provide housing for its residence within its jurisdiction. In my view, the granting of an interdict against the Municipality, in this case, has the potential to frustrate the development of houses to the prejudice of the Municipality's Constituency. An interdict sought by the applicant will affect the discharge of the Municipality's constitutional developmental duty as envisaged in sections 152(1)(c) and 153 of the Constitution. I am of the view that the balance of convenience does not favour the applicant for the granting of an interim interdict. Furthermore, there is no imminent irreparable harm that the applicant would suffer if the interim interdict is not granted.

 

Alternative remedy

 

[70]      The applicant, in my view, has an alternative remedy. The review application is the applicant’s alternative remedy. Should the applicant be able to establish reviewable irregularities in Part B of this application, the review court will be able to grant suitable remedies to protect the applicant’s rights.

 

Conclusion

 

[71]      Given all these considerations, I am of the view that the applicant has not demonstrated an entitlement to an interim interdict. Therefore, the applicant's application for an interim interdict must fail.

 

Costs

 

[72]      As far as the issue of costs is concerned, it is trite that a court considering an order of costs exercises a discretion and that the court’s discretion must be exercised judicially.[18] In this case, there are no reasons advance for a departure from the normal rule that costs follow the event. The applicant must pay the costs of this application.

 

Order

 

[73]      In the result, the following order is granted:

 

73.1    The applicant’s application is hereby dismissed.

 

73.2    The applicant is ordered to pay the costs of this application, including the costs of Counsel on scale B.

 

 

LEKHULENI JD

JUDGE OF THE HIGH COURT

 

 

APPEARANCES

 

For the Applicant: Adv Mpya

Instructed by: Tshivhase Attorneys Inc

 

For the first Respondent (the Municipality): Adv van der Merwe

Instructed by: Le Roux Lamprecht Inc

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