Royal Security CC v SS Salutions (Pty) Ltd t/a Seal Security and Others

The Western Cape Provincial Government awarded a security services tender to Royal Security CC (the tenth respondent) nearly a year before this application. SS Salutions (Pty) Ltd t/a Seal Security (the applicant) and Tyte Security Services CC (the twenty-second respondent) had been providing security services under a previous tender that was unlawfully awarded to them jointly about three years prior. Following an urgent interdict application in June 2023, an interim order allowed the applicant and the twenty-second respondent to continue rendering services pending the outcome of a review application. On 21 February 2024, the court dismissed both the applicant's review application and the twenty-second respondent's counter-application for judicial review, confirming the award of the tender to Royal Security CC and ordering the handover of security operations to it within one calendar month. Only the twenty-second respondent applied for leave to appeal, which the court dismissed on 24 April 2024. The twenty-second respondent then hastily filed another application for leave to appeal to the Supreme Court of Appeal. Royal Security CC brought this urgent implementation application under section 18(3) of the Superior Courts Act, seeking immediate execution of the handover order pending any further appeals. The twenty-second respondent refused to comply with the February 2024 order. The applicant (Seal Security) had already handed over its operations to Royal Security CC, leaving only the twenty-second respondent in defiance of the order.

• Whether the applicant (Royal Security CC) demonstrated exceptional circumstances justifying the immediate execution of the court's order pending any further appeals in terms of section 18(3) of the Superior Courts Act 10 of 2013.
• Whether the applicant proved on a balance of probabilities that it would suffer irreparable harm if the court did not order immediate execution.
• Whether the other party (the twenty-second respondent) would suffer irreparable harm if the court ordered immediate execution.
• Whether the public interest and the interests of justice favoured the implementation of the order pending appeal.
• Whether the prospects of success on appeal (as assessed in the dismissed leave to appeal application) bore on the issue of exceptionality.

The operation and execution of orders 1, 2, and 3 of the court's order of 21 February 2024, read with paragraph F of the order of 24 April 2024, were to be implemented pending the outcome of any appeal process by the twenty-second respondent or until another court otherwise directed. The twenty-second respondent was ordered to pay the costs of the application, including costs of two counsel (senior counsel on scale C and junior counsel on scale B).

In determining an application under section 18(3) of the Superior Courts Act 10 of 2013 for immediate execution of an order pending appeal, the court must exercise a discretion, having regard to: (a) whether exceptional circumstances exist; (b) whether the applicant has proved on a balance of probabilities that it will suffer irreparable harm if the order is not implemented; (c) whether the other party will not suffer irreparable harm if the order is implemented; and (d) the prospects of success in any application for leave to appeal, as these bear on the issue of exceptionality. Where leave to appeal has been dismissed and the party resisting implementation has enjoyed an unlawful windfall while the successful tenderer suffers ongoing prejudice, implementation serves the interests of justice and protects the public purse.

The court observed that a breach of administrative jurisdiction usually implies public law remedies rather than private law remedies, aiming to prevent, remedy, or undo an improper administrative action, provide administrative justice, promote efficient and effective public administration, and strengthen the rule of law. This was noted in the context of rejecting the twenty-second respondent's argument that financial harm to the tenth respondent was not irreparable since it could be compensated through damages.

This case illustrates the application of section 18(3) of the Superior Courts Act in the context of government tender disputes. It provides guidance on what constitutes 'exceptional circumstances' sufficient to lift the automatic suspension of an order pending appeal, particularly where an unlawfully awarded tender has been set aside but the incumbent continues to benefit at the public's expense. The judgment underscores the importance of public interest in tender implementation decisions and confirms that financial harm coupled with the erosion of a limited contract period can constitute irreparable harm. It also clarifies that the dismissal of a leave to appeal application is a material factor weighing in favour of immediate implementation.