In Mamlambo Construction (Pty) Ltd v Amathole District Municipality and Another (EL 294/2020) [2020] ZAECELLC 9 (12 June 2020) a review application under the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) was to be sought. First, however, the applicant applied for an interdict against the department concerned.

The applicant in the matter was a civil engineering construction contractor, which submitted a bid to the first respondent in response to a tender notice published by the first respondent relating to the construction of certain bulk services in Cathcart. The second respondent likewise submitted a tender and was, in due course, awarded the contract.

It required more information so that it could bring a review application under PAJA.

Accordingly,  the applicant applied to the court for two orders, firstly, an order to compel the provision of the record relating to the decision to award the tender. Secondly, an interdict pending finalization of a review thereof.  If the applicant was to succeed, it had to prove that it has a prima facie right. In the Spur Steak Ranches case the following was said in this regard:

“…the right relied upon for a temporary interdict need not be shown by a balance of probabilities, it is enough if it is prima facie established though open to some doubt.

The proper approach is to take the facts set out by the applicants together with any facts set out by the respondents, which the applicants cannot  dispute,  and  to  consider  whether having regard to the inherent probabilities the applicants should, not could, on those facts obtain final relief at the trial ….”

In this matter, there was a series of contradictions about the reasons given for the disqualification. The first respondent's bid documents indicate that the applicant was "non-compliant" because its site agent's qualifications were not attached to the bid. However, in the pre-qualification assessment document reference is made to relevant projects and critical staff experience etc. of the applicant's site agent, which does not square at all with the failure to attach the site agent's qualifications.

In all the circumstances, the court ordered the production of all records in relation to the above and interdicted and restrained from taking any further steps in the implementation of the tender pending the outcome of review proceedings.

It is therefore, essential that the interdict mechanisms are utilized when the situation allows.

Written by Nicolene Schoeman-Louw, Managing Director, Schoeman Law