The Western Cape Department of Health and Wellness published tender WCGHSC 0362/1/2023 for private security services at healthcare facilities, with contracts set to commence on 1 April 2024 after existing contracts expired on 31 March 2024. The healthcare facilities were grouped into metro and rural zones. The Department received 107 bids. Evaluation occurred in three phases: Phase 1 assessed mandatory criteria compliance; Phase 2 was operational assessment; Phase 3 considered price and preference points. Most applicants were excluded at Phase 1 for various reasons including failure to submit NBCPSS certificates, incomplete pricing schedules, failure to submit Workplace Skills Plans to SASSETA, and failure to bid for all required services. The Department ultimately awarded the tender to Phangela Private Security Services (Pty) Ltd, Golden Security Services CC, and Amazim-zim Security and Private Investigators (Pty) Ltd. Nine of the ten applicants were incumbent service providers whose contracts expired on 31 March 2024. The applicants brought urgent applications seeking interim interdicts to suspend implementation of the tender award and to allow them to continue providing services pending final determination of review proceedings under PAJA.
1. The eighth respondent's application for condonation for the late filing of its answering affidavit was refused. 2. All five applications for interim interdictory relief were dismissed. 3. There was no order as to costs.
For an interim interdict pending the final determination of main proceedings, the right sought to be protected must be the same right that forms the subject-matter of the main action and which the applicant seeks to vindicate in those proceedings. Alternatively, the outcome of the main action must at least have some bearing on the right sought to be protected in the interim. Where review proceedings are concerned solely with the right to just administrative action under section 33 of the Constitution read with PAJA, and the applicants concede that this right requires no protection by interim interdict, the applicants cannot rely on other unrelated rights (such as public interest, the right to make a living, or employees' rights) to obtain an interim interdict, as the success of the review has no bearing on those rights.
The court noted that if a litigant should be insulated against an adverse costs order in main proceedings to vindicate a constitutional right (per the Biowatch principle), the same should apply when a litigant seeks interim protection of that right.
This case clarifies an important principle in South African interim interdict law: the right sought to be protected by an interim interdict pending review must be the same right that is to be vindicated in the review proceedings, or at a minimum, the outcome of the review must have a bearing on that right. The case emphasises that applicants cannot circumvent the requirements for an interim interdict by putting up rights unrelated to those forming the subject-matter of the main proceedings. It also confirms the application of the Biowatch principle to interim interdictory proceedings brought to protect constitutional rights.