Urgent interdicts in procurement: Facts, judgment, and practical lessons for litigators and clients
On 30 September 2025 Van Zyl AJ handed down reasons after having dismissed Part A of an urgent application by J S Maritime Partners seeking to stop the Department of Forestry, Fisheries and the Environment from continuing with the adjudication of Tender DFFE-8004 for the operation, crewing, and technical management of the polar research vessels SA Agulhas II and RV Algoa.
The decision is a useful, practical guide for any practitioner or commercial actor contemplating urgent interdictory relief in a public-procurement context; particularly where the relief would restrain statutory functions and the award process for a strategically important State asset.
Background
The Department published the tender on 11 April 2025; bids closed on 23 May 2025 and three bids were received. J S Maritime did not submit a bid. Instead it launched a two-part application: (A) an urgent interim interdict to halt adjudication pending review; and (B) a substantive review seeking to set aside the tender on multiple grounds (insufficient answers to tender questions, alleged undue influence favouring the incumbent AMSOL, failure to extend the closing date, and related complaints).
The court condoned procedural non-compliance and heard Part A as urgent, but ultimately found that J S Maritime had not satisfied the classical interim-interdict test and dismissed Part A; each party was ordered to pay its own costs.
Key legal issues considered by the court
Van Zyl AJ focused on the orthodox four-part interdict test (prima facie right; well-grounded apprehension of irreparable harm; balance of convenience; absence of an adequate alternative remedy) and on the special caution courts apply when interim relief would restrain the exercise of statutory or executive powers (the “clearest of cases” principle).
The court also considered three procedural defences raised by the respondents: lack of urgency, non-joinder of the three actual bidders, and the applicant’s standing (it had not tendered).
Why the interim interdict failed
Although the court agreed to hear the matter urgently, it found the applicant had not cleared the hurdles required for interim relief:
No sustainable prima facie right
The applicant’s asserted “right to tender” or “legitimate interest” was not shown to be the kind of right that an interim interdict preserves; an applicant cannot rely simply on a right to seek review. The court emphasised that an interdict prevents threatened future wrongs and must protect a distinct right threatened by imminent irreparable harm.
Speculative apprehension of irreparable harm
The applicant’s allegation of unspecified losses was conclusory. It had not shown that, absent an interdict, it would suffer irreparable harm that could not be compensated later. Critically, the applicant had chosen not to bid and could not show it would necessarily have been awarded the contract even if the tender terms had been different.
Balance of convenience against intervention
Granting an interim interdict would interrupt a procurement process for state vessels whose timely operation (SA Agulhas II voyages) served urgent national and scientific interests. Repeating the tender yet again would have prejudiced bidders (prices already disclosed), risked delay to critical Antarctic and sub-Antarctic voyages, and imposed budgetary and operational burdens on the Department. On that score the court concluded the balance of convenience favoured refusal.
No other satisfactory remedy not shown
The applicant had alternatives. Notably, it could have submitted a bid (it had a vessel and experience) or pursued remedies after award. The court also reminded that a disappointed bidder may (in proper circumstances) claim damages under PAJA if unlawfulness is proved.
Undue-influence and incumbent-advantage allegations insufficient
Allegations of undue influence were speculative and unsupported by factual foundation; independent vetting of the tender process was not meaningfully disputed. The court also rejected the argument that an incumbent’s institutional knowledge alone renders a process unfair. Incumbency advantage is inevitable and not, without more, unlawful. The judgment even referenced comparative ECJ authority on “incumbent advantage” to underline this point.
The court therefore dismissed Part A, reserving more detailed review consideration for Part B. Costs in Part A were ordered to be paid by each party.
Practical implications — what litigators and clients must take from this judgment
For litigators (urgent-relief specialists)
Don’t litigate by omission.
If a client wishes to challenge a tender, the safest route is to submit a compliant bid and preserve rights to review; failing to bid and then asking a court to interdict the process is uphill work. The court will scrutinise why a party refrained from tendering.
Prepare a strong, narrow prima facie right case.
An assertion that you have a “legitimate interest” is not enough. Show a concrete legal right or interest that will be imminently and irreparably harmed if interim relief is not granted.
Evidence the irreparability and quantify prejudice.
Courts expect particulars: dates, contract milestones (e.g. handover windows), concrete loss estimates and why compensation will not be adequate. Vague allegations will fail.
Join necessary parties early.
Where bidders are identifiable, joinder is expected. Failure to join may be fatal or at least weaken the equitable case as it raises fairness issues where proprietary commercial interests are at stake.
Build a purposive materiality case on the merits.
If you allege procedural irregularity, show how it undermines the tender’s purpose or gave a real competitive advantage — not merely that the procuring entity could have acted differently.
For commercial clients and would-be tenderers
If you can bid, bid.
Submitting a competitive offer both preserves contractual remedies and strengthens later review arguments. Courts will be unsympathetic where a party elected non-participation.
Collect contemporaneous evidence.
If you claim confusion, undue influence or lack of information, preserve emails, attendance registers, minutes of briefing sessions and any independent communications. Speculation is not evidence.
Act quickly.
Urgent relief is time-sensitive. Delay (or self-created urgency) will be used against you. If you miss the bid window, prepare for the fact that interim interdicts will be difficult to obtain.
Understand incumbent dynamics.
Incumbent knowledge is normal; if a procuring entity supplies material that would unfairly advantage one bidder, document that and show why neutralising measures were impossible or not provided.
Practical checklist — before launching an urgent interdict to stop a tender
- Have you submitted a bid? If not, why not (good documentary reason)?
- Can you specify a clear, protectable right that will be imminently and irreparably harmed?
- Do you have contemporaneous evidence of unanswered critical questions, altered briefing documents, or corrupt/biased conduct?
- Have you identified and joined all parties whose rights will be affected (other bidders, incumbents)?
- Can you show there is no adequate alternative (tender extension, bid correction, PAJA damages later)?
- Have you acted promptly to the event you now invoke as urgent?
Conclusion
J S Maritime Partners v Minister of Forestry, Fisheries & the Environment is a reminder that interdicts which restrain the exercise of public power and interrupt procurement for strategically important services will be granted only in the clearest of cases. The ruling underscores disciplined pre-litigation strategy: bid where feasible, preserve documentary proof, join interested parties, quantify irreparable harm and move fast. For practitioners and clients focused on procurement disputes, these are non-negotiable prerequisites for any credible urgent challenge.
If your business is weighing a challenge to a procurement process, or needs a tactical pre-bid compliance audit, contact Dee-dee Mathelela, head of our Dispute Resolution practice.