Conpack Building & Civils (Pty) Ltd V University of the Western Cape and Another (014117/25) [2025] ZAWCHC 90 (7 March 2025)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 014117/25

In the matter between

CONPACK BUILDING & CIVILS (PTY) LTD

APPLICANT

AND

UNIVERSITY OF THE WESTERN CAPE

FIRST RESPONDENT

R CONRAD TRADING CC

SECOND RESPONDENT

Date of Hearing: 03 March 2025

Date of Judgment: 07 March 2025 (to be delivered via email to the respective counsel)

JUDGMENT

THULARE J

[1] In part A the question is what happens in the meantime and in particular whether construction in the refurbishment of the Cassinga Residence at the University of the Western Cape’s (UWC) main campus in Bellville should continue or whether it should pause while the applicant’s review of UWC’s decision to reject a bid by the applicant for a tender in the refurbishment (Part B) is pending. The applicant’s case was that construction should pause and sought to urgently interdict UWC from implementing the tender and concluding or giving effect to any agreement concluded pursuant the awarding of the tender. It was the applicant’s case that without interim relief, by the time a court heard its review, the tender would have run to completion or reached an advanced stage. A court of review could not grant the applicant effective relief. With interim relief, at worst, construction at the residence would be delayed by a few weeks, in what was an already delayed construction project. Construction, moreover, could still be completed before the start of the next academic year, averting any significant harm to UWC and its students. The applicant had tendered to UWC that its review be heard in court by the end of this month.

[2] This was opposed by UWC. UWC’s case was that the tender was already implemented, and an agreement concluded pursuant thereto, so, that portion of the applicant’s case could not be granted. What remained was an urgent interdict to prevent UWC and the second respondent from giving effect to their agreement. This was opposed and UWC advanced on 4 grounds. UWC’s case was that firstly the intended effect of the interdict was that there must be no refurbishment at all, pending the final determination of the applicant’s review application, which included any appeals, which could take years to complete and would outlive the current academic year, and that in the meantime nothing happened to the residences. This was a residence of over half a century old that was a health hazard which had to languish with the result that 258 students must be excluded from occupying those residences whilst UWC continued to incur unbudgeted out-of-pocket expenses simply for the applicant to push forward narrow commercial interests. Secondly UWC disputed the urgency of the matter and in the alternative argued that the urgency was self-created. Thirdly UWC argued that the applicant failed to make out a case for interdictory relief, in particular, UWC’s argument was that the relief was

fundamentally flawed because the applicant’s entire case was premised on its review application, and, as a matter of law, that was an impermissible approach. Finally, UWC’s case was that, given the importance of the refurbishment project and the prejudice that will be suffered, by UWC and its students, even if the applicant satisfied all the requirements for interim interdictory relief, this court should exercise its discretion to refuse the relief sought.

[3] Between 12 December 2024 and 13 January 2025 the parties were still engaged on the question of the reasons for the UWC decision, their adequacy, and the extent to which the applicant was entitled to written responses and or documents, including the issue of an undertaking not to implement the tender pending the review proceedings. For instance, the question of whether the applicant was already at that stage entitled to the scoresheets which were used by UWC representatives during the inspection for purposes, as part of the provision of the reasons for UWC’s decision, or whether that was part of the portfolio of evidence necessary for the review, was still being discussed by the parties. The applicant was informed of the decision on 12 December and UWC did not provide any reason for the decision. The applicant had to request them, which it did on the same date. It did not receive them until 18 December. In other words, for a week UWC did not respond. When the applicant received the reasons, it was simply the finding without any underlying facts. UWC refused to provide the underlying facts for its findings. UWC cannot be heard complaining about delays to which its own conduct contributed. The applicant provided an explanation for the delay. The applicant could not be faltered for requesting the underlying facts, like the scoresheets upon which the decision was based at the time. It was also well within the rights of UWC to point the applicant to its information office and PAIA as the available machinery for documents that the applicant sought at the time, to consider its position.

[4] The applicant knew that its bid was rejected, and there was nothing wrong with it asking why its bid was not successful. I am not persuaded that exhausting an available avenue of requesting documents, to enable you to assess your response to an adverse decision, first, before launching court processes which will allow you access to such documents, was on its own inherently a wrong choice. That choice was not sufficient to deny the applicant’s audience on urgency, under the circumstances. A choice that is not wrong is not always automatically a right choice. UWC awarded the tender to second respondent on 10 December 2024, concluded a contract with the second respondent on 31 January 2025 and the refurbishment commenced thereafter and is underway. By 4 February 2025 when the applicant instituted its application, the agreement was already concluded and implemented. The applicant was out of time to interdict the conclusion of the agreement and its implementation. What remained for consideration, on its prayers, was

the second part of clause 2.2 of its prayers, which was ‘giving effect to any agreement concluded pursuant to the award of the tender’.

[5] The applicant was a construction and civil engineering company and until January 2023 operated primarily in KwaZulu-Natal. In 2023 it decided to expand to the Western Cape and on 16 January 2023 concluded a lease agreement for commercial premises, which served as its administrative and operational hub for its Western Cape activities. According to the applicant refurbishment projects of the nature tendered for were characterized by their reliance on locally sourced resources to ensure profitability and effective project delivery. The lean operational model which it used avoided unnecessary overhead costs associated with maintaining a large fleet of equipment or excessive staff and instead relied on local plants, equipment and subcontractors to execute projects. According to the applicant, modern construction practices prioritized collaboration with specialist subcontractors and small to medium enterprises which provided highly specialized services and equipment. This eliminated the cost burden of maintaining and transporting extensive plant machinery. Its Cape Town office oversaw and managed all operational aspects in the Western Cape. It was staffed with key personnel whose roles included project planning, oversight of subcontractors, ensuring compliance with safety standards and coordinating logistics for materials and equipment.

[6] In its papers the applicant indicated that it submitted a bid to tender for the UWC refurbishment project of the Cassinga Residences (Blocks A, B and C). The tender document required, as one of the mandatory criteria “proof of fully established and fully operational Western Cape Business Premises (Eg Municipal Bill, Valid Lease Agreement),” Other than requiring the provision of a municipal bill or valid lease agreement as proof of business premises, the tender document did not set out any further requirements, criteria or specifications for the required business premises other than the fact that they should be in the Western Cape and should be operational. Accordingly, as part of its tender submission, the applicant submitted a valid lease agreement. The applicant had not been aware of the email sent by UWC on 19 November 2024 advising of the intended inspection the next day. At the time of the inspection the majority of the applicant’s staff were engaged in external site activities or meetings. The inspection team arrived unannounced, contrary to basic fairness principles with less than 24 hours’ notice.

[7] On 12 December 2024 UWC informed the applicant that its bid proposal was unsuccessful. On 18 December 2024 UWC provided the applicant with the reasons as to why it was disqualified from the tender process to wit, that the applicant did not comply with the requirement of ‘proof of fully established and fully operational Western Cape Business Premises’. UWC also informed the applicant that it would not provide the requested open-ended undertaking to suspend the implementation of the tender pending the applicant’s receipt of various documents and its consideration of the legality of UWC’s decision. At the time of the application, UWC had already awarded the tender to the second respondent on 10 December 2024, had contracted with the second respondent in respect thereof on 31 January 2025 and the refurbishment project was underway. The site was not in a state where students could be moved back into the residence should the refurbishment be halted. UWC had entered into a year-long lease agreement with an external service provider to provide temporary accommodation for the affected students, who have already been moved out of the Cassinga Residences.

[8] UWC found that the applicant failed to comply with a mandatory requirement of providing proof of a ‘fully established and fully operational Western Cape Business Premises’. On 19 December 2024 UWC notified the applicant of its intended site inspection and therein specified the standard of compliance required and the objective criteria that was used. The applicant was specifically advised that UWC would need to verify (1) fully operational and established Western Cape Premises, (2) Local plant and equipment viz. construction tools, vehicles etc, (3) Local stores and (4) Local Human resources. On 20 November 2024 UWC conducted a site inspection at the applicant’s premises in connection with the applicant’s bid for the tender. There was no signage on the building and UWC’s representatives were unsure if they were at the correct address. They were not met by anyone when they arrived at the premises and subsequently encountered the applicant’s office manager. UWC did not find the heavy equipment on the applicant’s premises, which machinery was listed in the applicant’s bid as being owned by the applicant and listed in the applicant’s bid documents. Such heavy equipment in the bid documents included generators, machinery, welding equipment, rollers, an excavator, a concrete mixer, a compressor, water pumps and a crane. UWC formed the view that the applicant’s premises inspected were merely an office which housed small tools. UWC did not observe the operational presence of a construction business at the applicant’s premises. UWC’s position was re-affirmed by its reading of the lease agreement which the applicant provided for the premises, which UWC understood to convey that the premises could only be used for office and yard/storage purposes. This UWC understood to be not comparable to a lease agreement of a construction company with any recognizable presence in the Western Cape. UWC was told by the applicant during the inspection that the applicant’s head office was in KwaZulu-Natal and that office in KZN did all the applicant’s administrative work.

[9] UWC was told by the applicant during the inspection that the applicant’s plant was based in KwaZulu-Natal. UWC concluded that a small office, accommodating small tools could hardly be described as establishing a presence in the Western Cape. Not even picks, spades, concrete breakers or hand tools were observed on the premised by UWC during the site inspection. Minimal tools, to wit one ladder, two drills, two wheelbarrows and scaffolding were observed. The necessary equipment for a large-scale refurbishment project was not present. UWC concluded that the applicant’s premises were not fully established in the Western Cape. UWC’s view was that despite the applicant claiming to have the requisite plant and equipment for the refurbishment project in its bid proposal, the plant and equipment were not in the Western Cape and might be in KwaZulu-Natal or simply non-existent. The heavy equipment listed in the applicant’s bid proposal was not present at its Western Cape premises. The Tender Working Group of UWC found that the applicant did not comply with the mandatory requirement as stipulated in the Tender document and recommended that the applicant should not advance to the next stage of the evaluation process.

[10] The Constitutional Court[1] said:

“[24] … Foremost is whether the applicant has shown a prima facie right that is likely to lead to the relief sought in the main dispute. This requirement is weighed up along with the irreparable and imminent harm to the right if an interdict is not granted and whether the balance of convenience favours the granting of the interdict. Lastly, the applicant must have no other effective

remedy.”

The Constitutional Court continued at para 25:

“[25] A prima facie right may be established by demonstrating prospects of success in the review.”

The applicant has shown that the decision of UWC is debatable. That is not enough to meet the threshold of an interim interdict. The applicant did not set out facts that showed a decision of UWC that appeared flawed. The applicant did not bring to the fore, in this application, that the decision of UWC was invalid and that the interdict was to prevent the loss that the applicant sought to recover. The applicant did not need to show the certain existence of the right. It is necessary only to show a right, though at the level of interim relief it may be open to some doubt.[2] I am unable to conclude that on the facts, the pending review is likely to be granted, and to find that the review bore prospects of success. The applicant has not been able to show its entitlement to the contract. The applicant failed to establish a prima facie right that entitled it to have refurbishment already underway to be stopped, so that it could protect that right. The interdict would have been appropriate before the award and implementation of the tender. After it was awarded and implemented, the appropriate remedy was an urgent review.[3]

[11] The decision of UWC on the tender adversely affected the economic interests of the applicant. The decision was already implemented and construction to refurbish was underway. The harm was not imminent, immediate and irreversible. An urgent review was an answer to the applicant’s complaint. The applicant did not show a need for a pressing and urgent temporary relief. An interim interdict

anticipates the later dispute, but most importantly, it also eliminates the source of loss that an applicant invoked.[4] It is not retrospective and cannot undo what was already done, to wit, the award and implementation of the tender where the refurbishing was underway. That ship had left the harbour and was sailing. In OUTA[5] at para 50 it was said:

“[50] Under the Setlogelo test the prima facie right a claimant must establish is not merely the right to approach a court in order to review an administrative

decision. It is a right to which, if not protected by an interdict, irreparable harm would ensue. 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.”

[12] I am unable to trace irreparable harm that arose from the right that the applicant enjoyed. At best the applicant has shown a commercial interest in the possibility of making a profit if the applicant succeeds in the review. I have my doubts that the mere possibility of making a profit if successful in a competitive tender, where an applicant faces a probable defence of non-compliance, qualified as a prima facie right sufficient to sustain interim relief of an interdict.[6] The apprehension of a financial loss, if advanced as a factor must be well-founded, for an interim interdict. On the other hand, if the applicant succeeds in review, compensation is one of the remedial reliefs available.[7] I have considered the judgment of Lekhuleni J[8] and agree that the right to review, on its own, is not sufficient to sustain an interim interdict. I am not sure that I understand

Lekhuleni J sufficiently to wholly agree with him, suffice it to state that my understanding of the legal position is that an applicant may establish a prima facie right by demonstrating prospects of success in review. I will state it no further than that

to say an applicant must demonstrate that the decision was flawed or invalid to show a right to review.

[13] The student housing crisis and the large shortfall of student accommodation at institutions of higher education in the country, including UWC, is well-known. The students who stayed at the Cassinga have been moved out to temporary accommodation off-campus provided by an external service provider. The building itself is 54 years old and in dire need of major refurbishment so that the students reside in conducive accommodation which supported learning and the realization of their right to further education. The housing at Cassinga costs approximately R38 000 per student in the academic year whilst the private accommodation is about R50 000. The difference in fees is about R12 000 per student. The increased fees have the potential to exclude students completely because of affordability, whilst others may be affected in attendance and academic performance especially if they are unable to secure alternative accommodation close to the university. UWC was forced to arrange transportation for the students between the new accommodation and campus at additional cost and if the refurbishments are not completed within the 2025 academic year as planned, UWC will be required to renew the lease for the temporary accommodation for another full year at a cost of about R12 900 000-00 plus annual increased as out-of-pocket expenses in addition to significant transport costs, which UWC did not anticipate and did not budget for. The delay will cause UWC and its students to suffer prejudice. The move of the completion date to later in the year or even years if the appeal rights are considered, will have both an academic and financial negative impact on both UWC and its student body.

[14] In its answer, UWC said that the applicant had an alternative satisfactory remedy to an interim interdict, which remedy was also preventative, in the form of an expedited judicial review, which the applicant failed to pursue. The expedited judicial review would have mitigated against any of the alleged losses to be suffered by the applicant. After the answer, in reply, it appears that the applicant conceded that it had an alternative remedy and sought an expedited review. Para 71 of the replying affidavit reads:

“71. Given the nature of the issue in dispute – being the interpretation of “fully operational premises” in the

Western Cape – Conpack submits that an expedited review can and should be conducted to resolve the matter swiftly. An expeditious

resolution would allow the project to commence without undue delay, which is in the interests of justice.”

To advance its change of front, the applicant went further and even submitted a draft order attached to its reply, wherein it suggested timelines for an expedited review. True to form, its first strike is urgency, and the second the suspension of works as envisaged in the tender awarded, in its draft order. It suffices to note that the applicant also brought in facts which it did not raise in its founding papers, in reply. It is impermissible and it took the matter no further.

[15] The court has a discretion whether to grant a temporary interdict.[9] The judicial discretion must be exercised properly[10] and upon established facts.[11] I am persuaded that the applicant’s papers do not warrant the remedy of an interim interdict. For these reasons I make the

following order:

(a) Prayer 1 of Part A of the notice of motion is granted.

(b) Prayer 2 and 3 of Part A of the notice of motion in their entirety, in essence the interim interdict, are dismissed.

(c) The applicant is to pay the costs, including the costs of counsel on scale C.

DM THULARE

JUDGE OF THE HIGH COURT

[1] SA Informal Traders Forum v City of Johannesburg 2014 (4) SA 371 (CC) at para 24.

[2] Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd 2023 (5) BCLR 527 (CC) at para 293.

[3] Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) at para 42; Darson Construction (Pty) Ltd v City of Cape Town 2007 (4) SA 488 (CPD) at 508A-C.

[4] Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) at para 38.

[5] National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223.

[6] Mega Ndira Resources CC v City of Cape Town and Others WCHC (3641/2023) (29 June 2023) para 20.

[7] PAJA section 8(1); Electoral Commission v Mhlope and Others 2016 (5) SA 1 (CC) para 132.

[8] Greenpoint Residents Association and Ratepayers Association and Others v Gartner and Others (4859/2024) [2024] ZAWCHC 159 (3 June 2024) para 64-67.

[9] Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A) at 360G.

[10] Knox D’Arcy p360E-F;

[11] Benoni Town Council v Meyer 1961 (3) SA 316 (W) at 326.