In Liquid Telecommunications South Africa (Pty) Ltd v Transnet SOC Ltd and Another (GSJ) (unreported case no 36818/2021, 27-9-2021) (Swanepoel AJ), Motsoeneng Bill Attorneys represented Transnet in an urgent application for interdictory relief, in which the applicant, Liquid Telecommunications (Pty) Ltd, sought an order that Transnet be interdicted from taking any further steps in finalising the award of a tender to Datacentrix (Pty) Ltd, pending the finalisation of a review application to be instituted by it.

Briefly summarised, the facts of the case are that Transnet invited tenders for the provision of electronic and information services to all of its operating divisions. The initial closing date of the tender was 6 November 2020, but it was subsequently extended to 20 November 2020. It was a pre-qualification requirement of the tender that a bidder had to provide a valid B-BBEE certificate.

Liquid Telecommunications, who had for a number of years provided the above service to Transnet submitted a response to the Request for Proposal (RFP), which response included the submission of a B-BBEE certificate that would expire on 17 November 2020, three days before the tender closed. On 28 June 2021 Transnet advised Liquid that its bid had been unsuccessful for the following reason:

“The bidder was non-responsive for failure to submit a valid B-BBEE Certificate, the bidder submitted an expired B-BBEE level 2 Certificate, and the expiry date was 17/11/2020. The tender closed on 20 November 2020.”

Liquid Telecommunications contended that its disqualification on this basis was unlawful as it was contrary to the Preferential Procurement Regulations, particularly regulation 6(4) and 7(4). Liquid Telecommunications further argued that paragraph 1.6 of section 9 of the RFP conferred a discretion on Transnet to condone non-compliance with the pre-qualification criteria, Paragraph 1.6 reads as follows:

“The purchaser reserves the right to require the bidder, either before or after a bid is adjudicated or at any time subsequently, to substantiate any claim in regards to preferences, in any manner required by the purchaser” In response, Transnet argued that Liquid Telecommunications’ disqualification was not unlawful as it was done in accordance with the pre-qualification criteria as set out in the RFP and that paragraph 1.6 does not confer a discretion on it to condone non-compliance with pre-qualification criteria.

The court was, therefore, tasked with determining whether Liquid Telecommunications had a right worthy of protection in the interim, not the unlawfulness of the disqualification as that is a matter to be dealt by the court that is to hear the review application. In making the determination the court, however, had to have regard to some of the contentions made by Liquid Telecommunications on the merits of its case.

In arriving at its conclusion,the court applied the test for an interim interdict as developed by our courts (see Setlogelo v Setlogelo 1914 AD 221), namely that an applicant that claims an interim interdict must establish the following –

• a prima facie right;
• a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted;
• the balance of convenience must favour the granting of the interdict; and
• the applicant must have no other remedy.

The court held as follows:

• A discretion was not conferred on Transnet to condone non-compliance with pre-qualification criteria by the RFP, nor did it have an inherent discretion to do so.
• Liquid Telecommunications had not demonstrated a clear right and there was substantial doubt that a prima facie right even existed.
• Liquid Telecommunications had not established that it would suffer irreparable harm should an interdict not be granted as it would continue to be paid by Transnet for the transitioning services it would render to Transnet, which on Liquid Telecommunications’ own version would take 18 months;
• There is no impediment to the review application being heard relatively quickly and there is no reason why the parties cannot approach the Acting Deputy Judge President for an urgent allocation (illustrating that Liquid Telecommunications had another remedy).
• The balance of convenience favours the respondents as should Liquid Telecommunications be successful in the review, it would continue with the rendering of services until the tender process has been concluded. Should the review be unsuccessful, the transition to Datacentrix will not have been delayed.

In light of the above, the application was dismissed with costs of two counsel.