Xmoor Transport (Pty) Ltd v Ethekwini Municipality and Others (D12238/2022) [2025] ZAKZDHC 67 (6 November 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Kwazulu-Natal High Court, Durban South Africa: Kwazulu-Natal High Court, Durban You are here: SAFLII >> Databases >> South Africa: Kwazulu-Natal High Court, Durban >> 2025 >> [2025] ZAKZDHC 67 | Noteup | LawCite sino index ## Xmoor Transport (Pty) Ltd v Ethekwini Municipality and Others (D12238/2022) [2025] ZAKZDHC 67 (6 November 2025) Xmoor Transport (Pty) Ltd v Ethekwini Municipality and Others (D12238/2022) [2025] ZAKZDHC 67 (6 November 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAKZDHC/Data/2025_67.html sino date 6 November 2025 IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL LOCAL DIVISION, DURBAN CASE NO: D12238/2022 In the matter between: XMOOR TRANSPORT (PTY) LTD                                                                    APPLICANT and ETHEKWINI MUNICIPALITY FIRST RESPONDENT EKENE INVESTMENTS CC                                                         SECOND RESPONDENT ISIWENGU (PTY) LTD                                                                      THIRD RESPONDENT IKAMBI TRADING CC                                                                  FOURTH RESPONDENT KHOSKU TRADING AND PROJECTS CC                                       FIFTH RESPONDENT THE REST FOLLOWS (PTY) LTD                                                    SIXTH RESPONDENT INGONYAMA CONSULTING (PTY) LTD                                    SEVENTH RESPONDENT LUKHONA PROJECTS (PTY) LTD                                                EIGHTH RESPONDENT MULTI SOLUTIONS CC                                                                 NINETH RESPONDENT ULUBANZI CONSTRUCTION AND PROJECT (PTY) LTD                                                                       TENTH RESPONDENT MMS LIGHT STEEL CONSTRUCTION (PTY) LTD                                                   ELEVENTH RESPONDENT KUKHULU PLANT HIRE (PTY) LTD                                          TWELFTH RESPONDENT AQUA TRANSPORT AND PLANT HIRE (PTY) LTD                                                                    THIRTEENTH RESPONDENT ETHOS TRANSPORT AND ROAD SERVICES (PTY) LTD                                                         FOURTEENTH RESPONDENT BLUE RAND EMPIRE (PTY) LTD                                           FIFTEENTH RESPONDENT ORDER Accordingly, I make the following order: 1. Ingonyama Consulting (Pty) Ltd, Lukhona Projects (Pty) Ltd, Multi Solutions CC, Ulubanzi Construction and Project (Pty) Ltd, MMS Light Steel Construction (Pty) Ltd, Kukhulu Plant Hire (Pty) Ltd, Aqua Transport and Plant Hire (Pty) Ltd, Ethos Transport and Road Services (Pty) Ltd and Blue Rand Empire (Pty) Ltd are hereby joined as the seventh to fifteenth respondents in the urgent application under case number: D12238/2022. 2. The applicant is granted leave to supplement its affidavit as follows: 2.1.      Having been granted leave to supplement on 18 October 2023, the founding affidavit to this application shall stand as a supplementary founding affidavit in the urgent application; 2.2.      Deliver a supplementary replying affidavit in terms of the Uniform Rules of Court hereof. 3. The matter is adjourned sine die . 4. The applicant is ordered to pay the first respondent’s costs on a party-and-party scale C, such costs to include the costs of two counsel. JUDGMENT Bhagwandeen AJ [1]      On 25 September 2025, the applicant launched the present application, on an urgent basis, seeking, inter alia , the following: ‘ 1. That the relief sought in the notice of motion be dealt with as a matter of urgency and [SG1] that any non-compliance with the rules of this Honourable Court be condoned in accordance with Rule 6(12) of the Uniform Rules of Court. 2.         That the seventh to fifteenth respondents be joined as the seventh to fifteen respondents in the application launched by the applicant in this Honourable Court under case number D12238/2022 on ("the urgent application"). 3.         That the applicant is granted leave to deliver a supplementary affidavit in the urgent application and that the founding affidavit to this application shall stand as such supplementary affidavit in the urgent application. 4.         That the first respondent is directed to, by no later than 23h30 on 9 October 2025, finalise the procurement for and award the tender for the hire of water tank operators with drivers for a period of 36 months under tender number 1J-27575 ("the tender"); 5.         That a rule nisi do hereby issue calling upon the respondents to show cause, if any, on the day of 2025/6 at 09h30 or so soon thereafter as counsel may be heard for an order directing the first respondent to bear the costs of the application on an attorney and client scale, such cost to include the costs of two counsel alternatively and in the event of any of the other respondents opposing the granting of the relief sought, that all such respondents opposing the application be directed to bear the costs of the application on an attorney and client scale, such costs to include the costs of two counsel, jointly and severally the one paying the other to be absolved.’ [2]      The first respondent, eThekwini Municipality, and Kukhulu Plant Hire (Pty) Ltd (the proposed twelfth respondent), delivered answering affidavits in opposition to the urgent application, alleging in limine, that the application lacked urgency and that the applicant, who relies on the urgent application launched on 21 June 2023 (‘the June 2023 application’), seeks to introduce a new cause of action in the present urgent application. It is further alleged that the tender in the present matter relates to Tender Number: 1J-27575 whereas the June 2023 application related to Tender Number: CF62/20. [SG2] [3]      On 8 October 2025, at the hearing of the urgent application, the applicant delivered its preliminary replying affidavit. In terms thereof, the applicant revised the relief sought and proposed that the following relief be granted: ‘ 17.1. that the seventh to fifteenth respondents be joined as the seventh to fifteenth respondents in the application; 17.2.    that the applicant be granted leave to deliver a supplementary affidavit in the urgent application dated June 2023 and that the founding affidavit to this application shall stand as a supplementary founding affidavit in the urgent application; 17.3.    that the first respondent is directed by no later than 11 January 2026 to finalise the procurement in the tender for the hire of water tank operators with drivers for a period of 36 months under tender number 1J-27575; 17.4     that the order in terms of paragraph 17.3 above shall operate as an interim order pending the finalisation of the matter; 17.5.    that the first respondent is directed to pay the costs of the application on an attorney and client scale, such costs to include the costs of two counsel alternatively and in the event of any of the other respondents opposing the granting of the relief sought, that all such respondents opposing the application be directed to pay the costs of the application on an attorney and client scale, such costs to include the costs of two counsel, jointly and severally, the one paying the others to be absolved; 17.6.    the applicant is granted leave to deliver a supplementary replying affidavit in terms of the Uniform Rules of Court hereof; and 17.7.    that this matter is adjourned to 12 January 2026.’ [4]      When the matter was heard, the applicant further proposed the following relief: ‘ 1.          The seventh to fifteenth respondents are joined as the seventh to fifteenth respondents in the urgent application under case number D12238/2022 ("the urgent application"). 2.            The applicant is granted leave to supplement its affidavit as follows: 2.1       having been granted leave to supplement on 18 October 2023 the founding affidavit to this application shall stand as a supplementary founding affidavit in the urgent application; 2.2.   deliver a supplementary replying affidavit in terms of the Uniform Rules of Court hereof. 3.         The matter is adjourned to 14 January 2026. 4.         All questions of costs are reserved.’ [5]      The first respondent, on the other hand, argued that the matter ought to be adjourned sine die and that the applicant should be ordered to pay the first respondent’s costs, as the applicant was not entitled to the relief sought by it. [6]      Consequently, the issues that this Court is required to determine are as follows: (a)      Whether the matter be adjourned to the 14 January 2026, or whether it should be adjourned sine die; (b)     Whether the applicant ought to pay the first respondent’s costs. [7]      In order to determine the above, this Court will have to consider the merits of the application and the conduct of the parties. Whether the application launched by the applicant in June 2023 may be relied upon by the applicant in the present matter [8]      It is common cause that the application which was launched by the applicant in June 2023 related to tender number: CF 62/20, whereas the present application relates to tender number: 1J-27575. [SG3] [9]      The importance of this distinction is that the applicant seeks to utilise the application launched by it in June 2023 to bolster the relief sought by it in the present application. [10]    The first respondent argues that this is improper as: (a)      The notice of application which was set down for hearing on 29 June 2023 sought relief with regards to a tender with reference number: CF 62/20. (b)      When that notice of application is considered together with the order made on 29 June 2023, [1] it is clear that no order was made with regards to tender number: CF 62/20. (c)      On 18 October 2023, the June 2023 application was simply adjourned sine die . (d)      The June 2023 application, which relates to the tender number: CF 62/2020, is still alive. (e)      It is not in dispute that tender number: CF 62/2020 was set aside by an Appeal Body acting on behalf of the first respondent and no longer exists. (f)      The 36-month tender that the applicant is referring to in the present application is the tender that was advertised in December 2023, which is an altogether a different tender under tender number: 1J-27575. (g)      In the circumstances, there is no question of the applicant being able to revive its earlier application. Whether the present application is urgent [11]    The applicant confirmed that it had been aware for over a year that the first respondent’s Bid Evaluation Committee had evaluated the 36-month open public tender [2] under tender number: 1J-2757 [SG4] . [12]    Despite such knowledge, the applicant waited for over a year to bring the present application. [13]    The written requests for information forwarded by the applicant to the first respondent commenced in June 2024 and ceased in July 2024. [3] [14]    Even in its letter to the first respondent dated 22 August 2025, the applicant states that if it did not receive an undertaking within 15 days, it would launch legal proceedings. [15]    The 15-day period specified by the applicant expired well before the 25 September 2025, on which date the applicant launched the present application. [16]    It is a well-established principle of legal procedure [SG5] that an applicant cannot be the author of its own urgency. [4] [17]    In the circumstances, no case for urgency had been made out by the applicant and it is clear that the purported urgency was of the applicant's own making. [18]    Therefore, the application lacked urgency. Is the relief sought by the applicant competent and capable of being granted? [19]    The applicant must stand and fall by the relief that it seeks. [20]    The relief sought by the applicant at paragraph 3 of its notice of motion, as well as the amended relief set out in paragraph 17.3 of its preliminary replying affidavit, requires that this Court compel the award of tender number: 1J-27575. [21]    The relief sought by the applicant, both at paragraph 3 of its notice of motion and the amended relief sought by the applicant at paragraph 17.3 of its preliminary replying affidavit, is incompetent as: (a)      The relief sought violates the separation of powers between the court and the Organ of State (the eThekwini Municipality). [5] [SG6] [SG7] In this regard, the court reviews the lawfulness of the administrative action of the eThekwini Municipality but it does not and cannot perform executive functions. Consequently, a decision on who receives a contract is an executive power that lies with the Organ of State (eThekwini Municipality), not the court. (b)      The Organ of State (the eThekwini Municipality) has the discretion and expertise to make its own procurement decisions. This Court’s role is to ensure that the process was fair but not to second-guess the commercial merits of the decision of the first respondent. [22]    It is clear that the applicant is alive to the above issues, as it abandoned the aforementioned relief. [23]    Furthermore, the applicant confirms that the letters forwarded [SG8] to the first respondent during June and July 2024 [6] was intended to solicit a response from the first respondent regarding the applicant’s queries in respect of tender number: 1J-27575. The applicant contends that the present application would not have been brought had the first respondent responded to the applicant’s queries. [24]    Therefore, the relief that ought to have been sought by the applicant should have been an order for the first respondent to provide the applicant with the requisite information. [25]    However, that was not the relief sought by the applicant. [26]    Instead, the applicant sought relief that could not be granted by this Court. [27]    On that score, the application was bound to fail. Would the applicant suffer prejudice should the relief sought not be granted? [28]    The applicant claims that it would suffer prejudice should tender number: 1J-27575 [SG9] not be awarded, contending that it is not currently running its fleet of water tankers at full capacity. The applicant alleged that it is running at a capacity of between 55 to 60 units but has invested in 110 units under its previous long-term contract awards and in anticipation of the award in its favour of the 36-month tender. It further alleges that it is not in its interest to continue providing services to the municipality on a short-term basis, considering that it is not running at its full capacity and confined to the prices set in 2023. [7] [29]    However, the applicant cannot claim such prejudice, as there is no evidence that it would be awarded a contract and therefore it should have invested in additional tankers. If the applicant is not awarded a contract, then that is simply a business risk that the applicant took and it must live with the consequences of that decision, just like every other business enterprise has to live with risks. [30]    Therefore, the alleged right that the applicant seeks to rely upon in support of its claim of prejudice simply does not exist. [31]    It is clear that the applicant has not come to this Court on the basis that it has standing because it participated in the 36-month Open Public Tender, but rather that it will suffer losses if the 36-month open public tender is not adjudicated, as it somehow knows that it is guaranteed a contract. [32]    This cannot be the case. The first respondent has put paid to the notion that the evaluation of the tender number: 1J-27575 has been completed [SG10] . The first respondent stated that the evaluation process for the tender has been suspended due to the investigations of the first respondent’s City Integrity and Investigation Unit (‘CIIU’) into allegations of certain irregularities relating to the tender. [8] Whether the applicant is entitled to any relief [33]    At best, the applicant may be entitled to an order joining the proposed seventh to twelfth respondents to this matter. [34]    The proposed seventh to twelfth respondents were duly served with the application papers. Only the twelfth respondent responded by opposing the substantive relief sought by the applicant. [35]    During the hearing on the 8 October 2025, the twelfth respondent was joined to the proceedings, and thereafter, argument was proffered on behalf of the twelfth respondent. [36]    None of the parties would be prejudiced if the matter is adjourned sine die. [37]    In the light that the applicant has abandoned the substantive relief sought by it, and that the applicant would not have been successful in the substantive relief sought by it, then it is clear that there is no basis to adjourn the application to 14 January 2026, as sought by the applicant. The purpose of adjourning the matter to the date is because the tender validity period of tender number: 1J-27575 expires on 11 January 2026. Costs [38]    The final issue for determination is that of costs. [39]    Where the substantive relief has been settled or abandoned and the only issue is that of costs, the principle enunciated in the case of Jenkins v South African Boilermakers Iron and Steel and Ship Builders Society [9] is applicable. In that matter, the court found that where a case is settled on its merits but the costs remain in dispute, the court should not waste time and resources by holding a full trial to determine who would have won. Instead, the court must make a fair determination on the allocation of costs using the material already at its disposal. [10] [40]    Consequently, for all of the reasons as set out above, it is clear that the first respondent is entitled to the costs incurred in opposing the application. Order [41]    On account of all of the above reasons, I grant the following order: 1. Ingonyama Consulting (Pty) Ltd, Lukhona Projects (Pty) Ltd, Multi Solutions CC, Ulubanzi Construction and Project (Pty) Ltd, MMS Light Steel Construction (Pty) Ltd, Kukhulu Plant Hire (Pty) Ltd, Aqua Transport and Plant Hire (Pty) Ltd, Ethos Transport and Road Services (Pty) Ltd and Blue Rand Empire (Pty) Ltd are joined as the seventh to fifteenth respondents in the urgent application under case number: D12238/2022. 2. The applicant is granted leave to supplement its affidavit as follows: 2.1.         Having been granted leave to supplement on 18 October 2023, the founding affidavit to this application shall stand as a supplementary founding affidavit in the urgent application; 2.2.         Deliver a supplementary replying affidavit in terms of the Uniform Rules of Court hereof. 3. The matter is adjourned sine die . 4. The applicant is ordered to pay the first respondent’s costs on a party-and-party scale C, such costs include the costs of two counsel. BHAGWANDEEN AJ Appearances Counsel for the Applicants                     : Adv S Mahabeer SC with Adv N Beket Instructed by: Ronette Govender and Associates 59 Main Road Malvern Durban Tel: 031 464 0280/ 078 517 0401 Email: ronette@rgalaw.co.za Counsel for the First Respondent         : Adv O. A Moosa with Adv S. Mthalane Instructed by: Luthuli Sithole Attorneys 56 Henwood Road Morningside Durban Tel: 031 312 2327 Email: mpendulo@luthulisithole.co.za nozipho@luthulisithole.co.za Counsel for the Twelfth Respondent    : Adv N. Winfred Instructed by:                                       : Kathy James Attorneys 146 Problem Mkhize Road Essenwood Durban Tel: 031 309 8778 / 075 337 0056 Email: kathy@kathyjames.co.za Date of Hearing                                   : 8 October 2025 Date Judgment delivered                     : ________ November 2025 [1] See annexure ‘MK2’ to the first respondent’s answering affidavit. [2] See applicant’s founding affidavit, para 60.3 at 30. [3] See annexure ‘SA21’ at 432-433; annexure ‘SA22’ at 434-435; annexure ‘SA24’ at 439-440. [4] SARS v Hawker Air Services (Pty) Ltd [2006] ZASCA 51; 2006 (4) SA 292 (SCA) [5] Mazibuko and Others v City of Johannesburg and Others [2009] ZACC 28 ; 2010 (4) SA 1 (CC) para 65. Minister of Health and Others v Treatment Action Campaign and Others (No 2) [2002] ZACC 15 ; 2002 (5) SA 721 (CC) para 135. Government of the Republic of South Africa and Others v Grootboom and Others [2000] ZACC 19 ; 2001 (1) SA 46 (CC) para 99. [6] See annexure ‘SA21’ at 432-433; annexure ‘SA22’ at 434-435; annexure ‘SA24’ at 439-440. [7] See applicant’s founding affidavit para 61 at 30. [8] See first respondent’s answering affidavit paras 50-62 at 9-10. [9] Jenkins v South African Boilermakers Iron and Steel and Ship Builders Society 1946 WLD 15. [10] Wholesale Provision Supplies CC v Exim International CC and Another 1995 (1) SA 150 (T) at 159. sino noindex make_database footer start