Down Touch Investments (Pty) Ltd v Matjhabeng Local Municipality and Another (1172/2016) [2016] ZAFSHC 68 (29 March 2016)

Parties

Procedural Posture

Urgent Application / Interim Interdict Pending Review Application

Legal Issues

1. 1 Whether the applicant is entitled to an interim interdict restraining the implementation of the tender award pending review.
2. 2 Whether the applicant established a prima facie right to relief based on alleged irregularities in the tender evaluation.
3. 3 Whether the balance of convenience and irreparable harm favour the granting of interim relief.

Ratio Decidendi

The applicant established a prima facie right to relief by demonstrating that its bid was disqualified on the basis of a requirement not contained in the tender documents, and that it provided sufficient evidence of company experience. The respondent failed to substantiate the necessity of completion certificates as a tender requirement. The applicant showed that, had its bid been properly evaluated, it would have scored the highest points and been awarded the contract. The court found that the balance of convenience favoured the applicant, as no substantial work had commenced and no service level agreement had been concluded. The risk of irreparable harm was present, as the applicant...

Court Disposition

Interim interdict granted pending review; applicant to institute review proceedings within five days; costs reserved for review.

Orders

• The applicant's failure to adhere to court rules relating to time periods and service is condoned; the application is heard as urgent.
• Pending finalisation of review proceedings, the respondents are interdicted from implementing the tender award, concluding or giving effect to any service level agreement, and performing any construction-related activity under the contract.