Giving his reasons for the judgment he handed down on 3 October 2022, he says he has refrained from granting the orders in prayer 4 of the Notice of Motion – because it would not be in the best interest of the public, should he grant those orders. Some of the orders in question are:

- The tender must be awarded to the applicant – DS Consortium - or the department of Sport, Arts, Culture and Recreation must be ordered to re-evaluate the bids submitted.

- C-Squared, as the successful bidder, must be excluded from the re-evaluation.

Loubser adds that when he made the decision to refrain from granting the orders in prayer 4, he was mindful of the facts alleged by the director of DS Consortium, Mosa Likobo, that Macufe is one of the largest emerging festivals in Africa, and when it was last hosted in 2019, it attracted around 200 000 people. “I am also mindful of what was alleged by C-Squared, that the first event of the festival was heard a day before the court heard the application,” he says. As prayer 4 of the Notice of Motion deals with the suggested remedy, should the award decision be reviewed and set aside? Although he handed down that verdict, he believes should those orders be ordered, it will bring an abrupt end to the festival, which will have financial repercussions for many institutions and patrons. “It is the best to leave the way forward in the hands of the parties – Likobo, the department, and C-Squared, without interference by the court, which could have a disastrous effect on a wide front,” says Loubser.

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Loubser, in his verdict, declared the appointment of C-Squared as the service provider for Macufe unlawful and then set the decision aside. In the reasons for his judgment, he includes that he finds it significant that the department does not dispute that if Likobo had known that multiple events could be hosted at a single venue, his bid would have been lower than the bid it had submitted. “All that the department put up as a defence is that it was entitled to negotiate a change in venues with C-Squared after the company was already appointed,” he adds.

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However, he says that he was made aware of a letter that C-Square’ds attorneys had written to the department prior to the submission of its bid. Loubser became aware of the letter when Likobo disclosed it before the hearing. The department did not disclose the letter in question to the Court in its opposing papers, and when it was disclosed, the department failed to deal with it. “In the said letter, it is pointed out that C-Squared intends to bid for the services called for, but it is also pointed out that C-Squared is organising entertainment events under its own umbrella that will take place during the same time frame as Macufe.” The letter continues to read that C-Squared does not want to compete with the department, and the two should meet to find common ground.

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In Loubser’s view, the letter provides a perfect explanation for the award of the tender to C-Squared on terms outside the tender specifications. “The failure of the department to deal with this letter in its papers only lends support to this view. It needs mentioning that also in the record of decision filed by the Department, there is not a word of reference to the letter and the effect it had on the award of a tender,” he explains.

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