SURE (PTY) Ltd V Ministry of Foreign Affairs and International Relations & 4 Others (CIV/APN/0041/24 (1)) [2024] LSHC 49 (28 March 2024)

# SURE (PTY) Ltd V Ministry of Foreign Affairs and International Relations & 4 Others (CIV/APN/0041/24 (1)) [2024] LSHC 49 (28 March 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/49/eng@2024-03-28) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/49/eng@2024-03-28) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/49/eng@2024-03-28) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/49/eng@2024-03-28) [ __](mailto:?subject=Take a look at this document from LesLII: SURE \(PTY\) Ltd V Ministry of Foreign …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/49/eng@2024-03-28) [ Download PDF (398.8 KB) ](/akn/ls/judgment/lshc/2024/49/eng@2024-03-28/source) Report a problem __ * Share * [ Download PDF (398.8 KB) ](/akn/ls/judgment/lshc/2024/49/eng@2024-03-28/source) * * * * * Report a problem __ ##### SURE (PTY) Ltd V Ministry of Foreign Affairs and International Relations & 4 Others (CIV/APN/0041/24 (1)) [2024] LSHC 49 (28 March 2024) Copy citation * __Document detail * __Related documents Citation SURE (PTY) Ltd V Ministry of Foreign Affairs and International Relations & 4 Others (CIV/APN/0041/24 (1)) [2024] LSHC 49 (28 March 2024) Copy Media Neutral Citation [2024] LSHC 49 Copy Hearing date 28 February 2024 Court [High Court](/judgments/LSHC/) Case number CIV/APN/0041/24 (1) Judges [Khabo J](/judgments/all/?judges=Khabo%20J) Judgment date 28 March 2024 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary Read full summary * * * Skip to document content Page | 1 IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/0041/24 (1) In the matter between: SURE (PTY) LTD APPLICANT and MINISTRY OF FOREIGN AFFAIRS 1st RESPONDENT AND INTERNATIONAL RELATIONS PRINCIPAL SECRETARY - MINISTRY OF 2nd RESPONDENT FOREIGN AFFAIRS AND INTERNATIONAL RELATIONS THE PERMANENT MISSION OF THE KINGDOM 3rd RESPONDENT OF LESOTHO IN SWITZERLAND THABO MATJAMA 4th RESPONDENT ATTORNEY GENERAL 5th RESPONDENT Page | 2 Neutral citation : Sure (Pty) Ltd v Ministry of Foreign Affairs and International Relations and 4 Others [2024] LSHC 49 CIV (28 February 2024) CORAM : KHABO J., HEARD : 28 February 2024 RULING : 28 February 2024 FULL REASONS : 28th March 2024 SUMMARY Practice and procedure - Urgency - Interim interdict sought on an urgent basis by the Applicant against the procurement of services by the Government of Lesotho from a foreign company for the removal of goods belonging to a former Ambassador of Lesotho to Geneva, Switzerland without advertising such - On the basis that the procurement of such services from a foreign company contravened Section 78 (1) of the Public Procurement Act, 2023, which purportedly gives preference for services valued at that financial threshold to 100% indigenous Basotho owned companies and was, therefore unlawful - That besides it being unlawful, it prejudiced these Basotho including the Applicant who purports to have suffered a direct financial loss as a result of the failure by the Ministry of Foreign Affairs and International Relations to Page | 3 put up the job for open bidding - interdictory relief not granted on account of Applicant’s failure to meet all the requirements of the law. ANNOTATIONS Statutes and subsidiary legislation High Court Rules, 1980 Public Procurement Act, 2023 Cases cited Lesotho Attorney General and Another v Swissbourgh Diamond Mines LAC (1995 - 1999) 77 Commander, LDF and Another v Matela LAC (1995 - 1999) 799 DPP v Ramoepana C of A No. 49/2020 Dr Mohale Phehlane v Prime Minister of Lesotho and 3 Others CIV/APN/ 0384/23 Lesotho University Teachers and Researchers’ Union v National University of Lesotho LAC (1995 - 1999) 661 Page | 4 `Mamotsapi PhafoIi and 2 Others v Provisional Liquidators of MKM Star Lion Group and 6 Others C of A (CIV) No. 07/2017 Mosito Ramahloko v The Learned Magistrate, Mr Kolobe and 5 Others CIV/APN/177/19 The President of the Court of Appeal (Justice Michael Mathealira Ramodibedi) v The Prime Minister (Dr Motsoahae Thomas Thabane) and 4 Others CC 11/2013 Other jurisdictions South Africa East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Limited and Others 2011 ZAGP JHC 196 Knox D’ Arcy LTD and Others v Jamieson and Others 1996 (4) SA 348 (A) Millenium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province 2008 (2) SA 481 (SCA) National Gambling Board v Premier, Kwazulu Natal and Others 2002 (2) SA 715 CC Plettenberg Bay Entertainment (Pty) Ltd v Minister of Law and Order 1993 (2) SA 396 (C) Setlogelo v Setlogelo 1914 AD 221 Tshwane City v Afriforum 2016 (6) SA 279 (CC) Page | 5 JUDGMENT KHABO J., Introduction [1] This is an application for an interim interdict in which the Applicant company seeks, on an urgent basis, the suspension of the removal of goods belonging to the former Lesotho Ambassador to Geneva, Switzerland by a foreign company Dgm Veron Grauer engaged by the Ministry of Foreign Affairs and International Relations (the Ministry) without allegedly advertising the said job. [2] The interim interdict or restraining order is brought pending the finalisation of a review application in which the Applicant seeks the review and setting aside of the Ministry’s decision to procure the services from a foreign company, allegedly, in contravention of Section 78 (1) of the Public Procurement Act, 20231 which purportedly reserves the procurement of services by the Government of Lesotho valued at a certain financial threshold to 100% indigenous Basotho owned companies as well as an 1 [Act No. 3 of 2023](/akn/ls/act/2023/3) Page | 6 order of mandamus compelling the 1st to 4th Respondents to follow due process in procuring the said services. The relief sought [3] The interim interdict or restraining order sought by the Applicant is couched in the following terms: (a) Dispensing with the normal Rules of Court pertaining to the modes of service and time limits due to the urgency thereof; (b) That a rule nisi be issued returnable on a date and time to be determined by this court calling upon the Respondents to show cause, if any, why:- (i) The First to Fourth Respondent shall not be interdicted and/or ordered to stay/suspend the removal services solicited/procured from DGM VERON GRAUER (Switzerland), a foreign company; (ii) The First to Fourth Respondents shall not be directed to serve the Applicant with and file the advertised notice of tender and any documentary evidence of the legal processes adopted by the Government Page | 7 of Lesotho before a tender was issued to the foreign company DGM VERON GRAUER (Switzerland) for the removal services of Ambassador Matjama’s properties from Geneva, Switzerland to Lesotho. The application is opposed. The Applicant having approached the court on an urgent basis, the court has to first determine urgency. A brief background to the dispute will put the urgency application in perspective. Background to the dispute [4] Deposing to the founding affidavit on behalf of the Applicant company, Mr Lefa Bernard Manong, the Applicant company’s Marketing and Business Development Manager stated that the Applicant came to know of the award of the job to Dgm Veron Grauer on 12th February, 20242 upon receipt of an e - mail3 from one of its officers, Xavier Ganan, who solicited a quotation from the Applicant for the delivery of the former Ambassador’s goods from the port of entry (POE), not mentioned in the pleadings, to his residence in Maseru. This appears to have been a bid to 2Para 4.1 of the founding affidavit 3 Annexure ‘A’ to the founding affidavit Page | 8 procure sub - contract services from the Applicant company from the port of entry. [5] It appears the deponent was shocked to learn of the award of the job for the removal of the former Ambassador’s goods from Geneva to Lesotho to a foreign company. He deemed the Ministry’s conduct improper. According to him, the procurement of services of that financial magnitude is the reserve of 100% indigenous Basotho owned companies in terms of Section 78 (1) of the Public Procurement Act, 2023.4 [6] Aggrieved by this, he alerted the International Movers Association of Lesotho (IMAL), an Association to which he says the Applicant is a member. In its intervention, the said Association lodged a complaint dated 13th February, 20245 with the Ministry’s Principal Secretary, 2nd Respondent herein, to which they said they never received a response. On 23rd February, 20246 the Applicant decided to write a letter of complaint as an individual addressed to the 2nd Respondent, with a copy to the Lesotho 4 Para 6.3 of his founding affidavit 5 Annexure ‘D’ to the founding affidavit 6 Annexure ‘E’ to the founding affidavit Page | 9 Embassy in Geneva, 3rd Respondent herein,7 but still they say there was no response. [7] The deponent states further that upon not receiving any response, Mr Mokhethi Matlosa, Applicant’s Operations and Administration Manager took the initiative to approach the office of the 2nd Respondent on 27th February, 2024. He says he was invited to a meeting scheduled for the afternoon of 28th February, 2024 for consideration of their complaint. This was the day on which, according to Mr Lefa Bernard Manong, “logistics [were] set to take place.”8 In simple terms, for the goods to move from Geneva. [8] With the goods to move the next day, Applicant decided to approach this court for an urgent relief, hence the current application which was instituted on 28th February, 2024. The matter was initially brought ex parte, but the court insisted that the Respondents be served. The matter was heard in the afternoon of the same day, 28th February, 2024, wherein the court made a ruling dismissing urgency, now followed by a fully reasoned judgment. 7 Annexure ‘F’ to the founding affidavit 8 Para. 10.1 of the founding affidavit Page | 10 Urgency - the law [9] Rule 22 (a) provides an avenue through which matters that deserve urgent attention may be heard. It provides that: In urgent applications, the court or a judge may dispense with forms and service provided for in these Rules and may dispose of such matter at such time and place in such manner and in accordance with such procedure as the court or judge may deem fit. [10] Rule 8 (22) (b) of the High Court Rules, 19809 (the Rules) requires an Applicant who moves the court on an urgent basis to set forth explicitly the circumstances which render the matter urgent. He or she must state the reasons why he or she claims that he or she cannot be afforded substantial relief in a hearing in due course. The apex court put this Rule succinctly in the case of `Mamotsapi PhafoIi and 2 Others v Provisional Liquidators of MKM Star Lion Group and 6 Others10 when it pointed out that whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out in the petition or 9Legal Notice No. 9 of 1980 10C of A (CIV) No. 07/2017 para. 19 at p. 11 also in Commander LDF and Another v Matela and Others LAC (1995 - 1999) 799 Page | 11 affidavit filed in support of an urgent application and secondly, whether the applicant seeking relief will not obtain substantial relief at a later stage. Rule 8 (22) (b) provides a “gatekeeping mechanism”11 aimed at ensuring that Rule 22 (a) is not abused. [11] The court will only grant an urgent relief where an Applicant is able to persuade it that extremely cogent grounds/reasons for urgency exist.12 The court stated in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Limited and Others13 that: The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of the absence of substantial redress in the application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules, it will not obtain substantial redress. Reasons for urgency must appear ex facie the certificate of urgency.14 11 Mosito Ramahloko v The Learned Magistrate, Mr Kolobe and 5 Others CIV/APN/177/19 at para 15 p. 12 referred to in Dr Mohale Phehlane v Prime Minister of Lesotho and 3 Others CIV/APN/ 0384/23 para 9 at pp. 7 - 8 12 `Mamotsapi PhafoIi and 2 Others v Provisional Liquidators of MKM Star Lion Group and 6 Others C of A (CIV) No. 07/2017 para. 19 at p.11 13 2011 ZAGP JHC 196 at para 6 14Commander, LDF and Another v Matela LAC (1995 - 1999) 799 at p. 805, para. B Page | 12 Applicant’s case [12] Applicant’s reasons for urgency as they appear in the certificate of urgency are that the 1st to 4th Respondents acted unlawfully in issuing a tender involving a huge sum of money to a foreign company without advertising when tenders in excess of One Hundred and Fifty Thousand Maloti M150 000.00) are an exclusive reserve of 100% indigenous Basotho. Owned companies. Applicant estimated the value of the tender at Five Hundred and Ninety Thousand Maloti M590 000.00. [13] They argued further that besides the tender being unlawful, 1st to 4th Respondents’ conduct denied indigenous Basotho an opportunity to bid and particularly caused the Applicant a huge financial loss. Basically, the reason is to stop the Government of Lesotho from continuing in this alleged unlawful act that prejudices Basotho together with the Applicant. [14] The Applicant having stated the reasons he or she cannot get a substantial relief if the matter is heard normally, the next enquiry is always - when did the Applicant know of the alleged infringement of a right that he or she Page | 13 wishes to protect or when did the cause of action arise to warrant an urgent determination by the court? [15] As it is, the cause of action arose on 12th February, 2024 when the Applicant first learned of the offer of the removal job to Dgm Veron Grauer. It approached this court on 28th February, 2024 for an urgent. The issue at this juncture is whether the Applicant acted swiftly as it should. It was stated by the apex court in The President of the Court of Appeal (Justice Michael Mathealira Ramodibedi) v The Prime Minister (Dr Motsoahae Thomas Thabane) and 4 Others15 that “it is by now generally trite procedure that urgent applications must be brought without undue delay, and without abuse of court process. Where there was undue delay, such delay ought to be explained satisfactorily by the applicant seeking relief on urgent basis.”16 A self - created urgency is an abuse of court process. [16] The court finds the time lapse between 12th February when the Applicant came to know of the contract between the Government of Lesotho and Dgm Veron Grauer and 28th February, 2024 when it finally approached it 15 CC 11 of 2013 16 Para 14 at p. 10 Page | 14 to be considerable. It, however, feels it was satisfactorily explained by Applicant’s attempts to seek 2nd Respondent’s intervention as reflected in paragraphs 6 and 7 above substantiated by correspondence. Dispensation is, therefore, granted in the circumstances. Having disposed of urgency, the next step is to consider the relief sought. The Applicant is herein seeking an interdictory relief or a restraining order against the 1st to the 4th Respondent, pending finalisation of the review application for a final relief. Application for an interdict - the law [17] The granting of an interim relief is an extraordinary remedy which is within the discretion of the court to either grant or withhold.17 It is important to note that an interim interdict does not affect the final determination of Applicant’s rights.18 To reiterate for a better appreciation of the relief sought, the Applicant is praying, in the interim, that the 1st to 4th Respondents be interdicted from securing the services of the foreign Swiss company in the removal of the former Ambassador’s goods from Geneva to Lesotho. It further seeks an order of dispatch directing the 1st to 17Knox D’ Arcy LTD and Others v Jamieson and Others 1996 (4) SA 348 (A) at 360 H - J 18 National Gambling Board v Premier, Kwazulu Natal and Others 2002 (2) SA 715 CC Page | 15 4th Respondents to furnish proof that a proper procedure has been followed in the procurement of the said services. [18] Is the Applicant is entitled to the interlocutory relief that it is seeking? The test for granting an interim relief was restated in Attorney General and Another v Swissbourgh Diamond Mines (Pty) Ltd and 5 Others19 and in Lesotho University Teachers and Researchers’ Union v National University of Lesotho20 as: (a) A clear or prima facie right; (b) A well - grounded apprehension of an irreparable harm if the interim relief is not granted; (c) That the balance of convenience favours the granting of the interim relief; and (d) The absence of any other satisfactory remedy. 19 LAC (1995 - 1999) 77 20 LAC (1995 - 1999) 661 at p. 672 Page | 16 The test had earlier been set out in the much - celebrated case on interdicts of Setlogelo v Setlogelo.21 Applying the test to Applicant’s case A prima facie right [19] Applicant’s basis of claiming a prima facie right to the procurement of the removal services of the former Ambassador’s goods is Section 78 (1) of the Public Procurement Act, 202322 which purportedly reserves the procurement of services of that financial value by the Government of Lesotho to 100% indigenous Basotho owned companies. The Applicant avers that it is such a company. Secondly, that it has done the job for the Government of Lesotho on previous occasions. In substantiating this, it filed invoices relating to previous jobs that it has done for the Government of Lesotho in the removal of goods from Lesotho diplomatic missions. 21 1914 AD 221 22 [Act No. 3 of 2023](/akn/ls/act/2023/3) Page | 17 [29] The question becomes: what gives the Applicant a right to this job? The Applicant avers that the job ought to have been opened up for a competitive bidding. What guarantees that it would be awarded the job? In the court’s view, the Applicant has failed to prove any clear or prima facie right to the job because it cannot guarantee that it would necessarily bid successfully, it being a competitive process, that could be won by any 100% Basotho owned company. An interdict is designed to protect a right, without a right, be it clear or prima facie there can be no interdict. A well - grounded apprehension of irreparable harm if the interim relief is not granted [30] Applicant’s apprehension of an irreparable harm lies in the job being awarded a foreign company. The Applicant rushed to court on 28th February, 2024 when as it put it “the logistics [were] set to take place.” 23 Simply put, this was the date on which shipping was to take place. Naturally, the goods would have been packed by then in preparation for shipping. In short, the work had commenced. The alleged harm has already taken place because the contract was already being executed. Effectively, the Applicant is seeking to interdict or stop something that has already taken effect. Stay is not an appropriate relief in the circumstances. 23 Para. 10.1 of the founding affidavit Page | 18 [31] Under the Setlogelo (supra) test a prima facie right is a right which, if not protected by an interdict, an irreparable harm would ensue. An interdict is meant to protect a future conduct and not things that have already occurred. Quite apart from the right to review and to set aside impugned decisions, the applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm. The emphasis is on ‘an impending or imminent’ harm. [32] The court in Millenium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province 24 refused to give the Applicant relief as the tender had already been awarded and the work had started. In order to be successful, the law requires that the alleged harm must be anticipated or ongoing. It must not have taken place already.25 [33] According to DPP v Ramoepana26 an interim order in application proceedings serves to preserve the status quo or to grant temporary relief, pending the finalisation of the main application. In this case, there was no longer any ‘status quo’ to preserve because execution of the contract had already commenced as goods had already been packaged ready for 24 2008 (2) SA 481 (SCA) 25 Tshwane City v Afriforum 2016 (6) SA 279 (CC) at 360 B- C at para 13 26 C of A No. 49/2020 Page | 19 shipping. The Applicant has, therefore, failed to meet the requirement of a reasonable apprehension of irreparable or imminent harm. The balance of convenience [34] This test requires the court to weigh the relative prejudice to both parties, in this case, the Applicant and the Respondents in the granting or not granting of the interim relief. The court has to consider the consequences, both to the applicant and to the respondent if the interdict is granted or withheld. This relief is dependent on the relief sought and therefore becomes intertwined with the above test of Applicant’s well - grounded apprehension of irreparable harm if the interim relief is not granted. With the above test having failed, this one normally follows. Lack of another satisfactory or adequate remedy [35] The Applicant contends that it has no alternative remedy except to seek this interdictory relief as it explored the other avenues without success. In the circumstances of this case, the available remedy to the Applicant is review Page | 20 proceedings not an interlocutory interdict because by the time it approached court the Swiss company was already executing their contract. [36] An interim interdict is not granted unless all the legal requisites have been fully met. The court held in Plettenberg Bay Entertainment (Pty) Ltd v Minister of Law and Order27 that the court does not have a discretion to grant an interdict unless all the legal requisites for an interim interdict are fully met. for protection of a right which the court has already found does not exist. [37] This was confirmed by this court in Letsatsi Ntsibolane v Teaching Service Commission and 5 Others28 per my brother Moahloli J., that the court has no discretion to grant an interim interdict if the above requirements for an interdict have not been established. These requirements are not considered in isolation but as a conspectus. The Applicant having failed to establish the requirements for an interdict, the court declines to grant it. 271993 (2) SA 396(C) at 400 28 CIV/APN/45/2019 at p. 4 Page | 21 ORDER [38] In the result, the following order is made: (a) Urgency is granted; (b) Interim interdict is refused; (c) Costs shall be costs in the cause. F.M. KHABO JUDGE For the Applicant : Adv., R.J. Lesenyeho For the Respondents : Adv., M.E. Ts`oeunyane #### __Related documents ▲ To the top >