Wastewant Waste Management (Pty) Ltd v City of Cape Town and Another

The applicant, Wastewant Waste Management (Pty) Ltd, was the incumbent service provider managing the Kraaifontein Materials Recovery Facility under a contract with the City of Cape Town set to expire on 30 October 2024. The City issued a tender for the collection of co-mingled dry recyclables and operation of the facility. Both the applicant and second respondent (Resource Innovations Africa (Pty) Ltd) submitted bids. The applicant's tender was disqualified as non-responsive early in the evaluation process, and Resource Innovations was appointed as the successful tenderer on 9 April 2024. The applicant lodged an internal appeal, which was dismissed on 11 June 2024. The applicant then launched an urgent application seeking an interim interdict to restrain the City and Resource Innovations from implementing the awarded tender, pending a review to set aside its disqualification and remit the tender for reconsideration. The City also issued a cancellation notice on 5 July 2024 providing only two months' notice, which the applicant initially sought to have declared unlawful.

• Whether the application was urgent and should be heard on an urgent basis
• Whether a non-responsive tenderer has standing to seek an interim interdict pending review of the tender award
• Whether the City's cancellation notice of 5 July 2024 constituted administrative action requiring setting aside or was governed by contract law
• Whether the court should grant relief compelling the City to continue using the applicant's services pending review
• Whether the applicant established the requirements for an interim interdict: prima facie right, irreparable harm, balance of convenience, and absence of adequate alternative remedy
• Whether a non-responsive tenderer's review right constitutes a sufficient prima facie right for interim interdictory relief

1. Non-compliance with the Uniform Rules of Court is condoned and the applicant is granted leave to move the application on an urgent basis. 2. The application for interim relief (Part A relief) is dismissed. 3. Part B (the review application) is postponed sine die. 4. Each party is to bear its own costs.

A non-responsive tenderer retains standing to seek interim interdictory relief linked to its review rights, following the Constitutional Court's decision in Giant Concerts and the SCA's ruling in WDR Earthmoving. However, for an interim interdict to be granted, a prima facie right must be more than just the right to approach a court for review; it must be a right that, if not protected by an interdict, would result in irreparable harm. Where the tender is for ongoing services (not project-specific or time-limited), and substitution or remittal remain viable remedies at the time of the eventual review, the applicant's review right is adequately protected, and interim interdictory relief is not justified. A court should not interfere with executive functions by selecting a contracting party for a state organ where an interdict is granted, as this would violate the separation of powers principle.

The court noted that although rare, there may be instances where a court grants an interim interdict staying tender implementation while simultaneously ordering the incumbent to continue rendering services, such as when the tender is project-specific and time-limited with a significant risk of irreparable public harm, or where there is evidence of gross, obvious, and clear infringements of administrative rights meeting the 'clearest of cases' standard. The court observed that it is not uncommon practice in the Western Cape Division for parties to approach the Acting Judge President for a preferential date to expedite review hearings, which would limit 'entrenchment' arguments.

This case clarifies the application of the Giant Concerts and WDR Earthmoving standing principles specifically in the context of interim interdict proceedings, confirming that non-responsive tenderers have standing to seek interim relief. It provides important guidance on how the prima facie right requirement for interim interdicts should be assessed in tender review cases, emphasising that the nature of the tender (ongoing services versus project-specific) is a critical factor in determining whether the review remedy will be rendered ineffectual. The judgment also reinforces the National Treasury principle that courts must respect the separation of powers by not selecting contracting parties for state organs, and confirms that Biowatch cost protection applies equally to interim and final proceedings where constitutional rights are asserted.