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[1]          Econ Oil & Energy (Pty) Ltd (Econ), the first respondent, is firmly of the view that it holds a contract with the applicant, Eskom Holdings SOC Limited (Eskom). The alleged contract is for the supply of fuel oil for a period of five years commencing 1 October 2019. The total value of the contract is approximately R8bn. The contract is supposed to have resulted from a tender issued by Eskom referred to as Bid Corp 4786 (the tender). Eskom maintains that the process adopted in executing the tender by various committees and individuals within Eskom was blemished by numerous irregularities, resulting in an outcome that is unlawful. Following the process, a recommendation was made to its Board of Directors (Board) to award the tender to various parties, Econ being one of them. Only Econ maintains that it has a valid and binding contract with Eskom. It is Eskom’s case that as the process and outcome of the tender is unlawful, the decision of its Board to award the tender to various parties should be reviewed and set aside. It seeks, in addition, a declarator to the effect that no binding contract was ever concluded between itself and Econ. The review and the declarator are the principal issues to be addressed in this matter. There are other issues ancillary to these, but their outcome is contingent on the outcome of the principal issues.

[2]          A conditional counter-application has been brought by Econ where it seeks the following relief: (i) a declarator that the contract between it and Eskom subsists, (ii) that Eskom be ordered to specifically perform its obligations in terms of the contract and, (iii) that a decision by the ninth respondent – who was appointed to adjudicate on this issue - holding that such a contract subsists be found to be correct, and that the remedy granted to Econ in terms of his adjudicative powers be made an order of this court. It is patent that the conditional counter-application depends on Econ succeeding in resisting Eskom’s case on the two principal issues. If not, the conditional counter-application falls away.