Working on Fire sues over tender

South Africa’s national wildfire response system was at the centre of a legal battle in the North Gauteng High Court in Pretoria on Tuesday. 

Working on Fire has sought an urgent interim interdict to halt the department of forestry, fisheries and the environment’s decision to award a multibillion-rand national wildfire management contract to the Tefla Group.

At stake is the structure and continuity of the Working on Fire programme, which both parties described in court papers as critical to wildfire prevention and suppression capacity across all nine provinces. The Working on Fire programme is implemented through a public-private partnership between the department and the Kishugu Group. 

In its amplified heads of argument, Working on Fire argued that implementation of the award before judicial review was completed would cause irreparable operational disruption, including the loss of established firefighting infrastructure, aviation capacity and Expanded Public Works Programme (EPWP) employment linked to the programme.

The department, however, contended that delaying or suspending implementation of the award would itself undermine national wildfire-response readiness and destabilise an essential public safety system.

The dispute arises from a 2022 contract for the five-year implementation of the Working on Fire programme, which was initially awarded to Working on Fire.

That award was set aside in April last year after a challenge by rival bidders, including the Tefla Group and the SA Youth Movement–CEF joint venture, after the court found that bidders had not been treated fairly.

The court ordered the department to reconsider the bids or restart the tender process, while allowing the existing arrangement to continue temporarily pending a legal  outcome. After that reconsideration process, the department awarded the contract to the Tefla Group, triggering the current legal challenge.

Working on Fire said the department illegally altered the procurement framework after bids had been submitted.It argued that all bidders prepared and priced proposals on the basis of a five-year implementation period under the original terms of reference. However, the department later engaged with Tefla regarding a substantially shortened two-year implementation model without reopening the process to competing bidders.

“The applicant’s complaint is that the department materially altered the scope, pricing assumptions, mobilisation assumptions, implementation assumptions and competitive conditions underpinning the procurement process, without reopening competition,” the heads stated.

Working on Fire argued that the department effectively moved from one procurement model to another by considering revised pricing submitted by Tefla for a two-year arrangement based on years four and five of its original bid.

According to the papers, a Tefla representative told departmental officials during March 2026 discussions that the project had originally required “substantial investment over five years” but had now been “compressed into a two-year period”, valued at about R1.8 billion.

The representative further raised concerns about “restructuring their costing for only two years” and said “significant changes would be required considering that three years had already lapsed”.

Working on Fire argued that the discussions demonstrated that the department was negotiating revised implementation assumptions, pricing and operational changes linked to a reduced budget and shortened timeframe, while competing bidders were excluded from equivalent engagement.

“The second respondent [the department] did not merely allow price refinement from the fourth respondent [Tefla Group], it allowed a procurement redesign which should have been a new tender,” the heads argued.

Working on Fire said the selective engagement with Tefla breached section 217 of the Constitution, treasury regulations and the Public Finance Management Act, which require procurement processes to be fair, equitable, transparent and competitive.

It further alleged that Tefla was afforded opportunities not extended to competing bidders, including engagement regarding revised pricing, implementation assumptions and tax-compliance issues.

“This is a patent breach of the principles of fairness, equity and transparency required by section 217 of the Constitution.” 

There were “prima facie concerns”, it said, that the department failed to properly engage with earlier bid evaluation committee findings and independent quality-assurance concerns relating to Tefla’s operational readiness and financial capacity.

On urgency and irreparable harm, Working on Fire said it has operated the programme since 2013, employing about 5 700 EPWP workers and maintaining aviation, firefighting and disaster-response capacity across all nine provinces.

It argued that implementation of the award before judicial review was finalised would terminate the arrangement and result in “irreparable operational, commercial and organisational harm”. The continuity of wildfire-response capacity and disaster-management capability remained matters of substantial public importance. 

The department, in an answering affidavit deposed to by director-general Nomfundo Tshabalala, opposed the application and argued that Working on Fire failed to establish any basis for interim or final relief.

The department denied that the procurement process was illegally altered and argued that the tender was reconsidered within the framework of the original five-year terms of reference after the earlier court order.

The reconsideration process included administrative compliance checks, technical evaluation, financial assessment, preference scoring and quality-assurance oversight.

The department disputed claims that the tender was unlawfully converted into a two-year arrangement, arguing that discussions about a shorter implementation horizon arose only after the award decision and were linked to budgetary and operational realities. 

It said that did not amount to a new procurement process or illegal redesign of the tender but rather legal post-award engagement concerning implementation of the contract.

The department further disputed allegations of procedural unfairness and unequal treatment, arguing that Working on Fire’s claims were speculative and unsupported by evidence of illegality.

The department argued that delaying implementation of the award could undermine national wildfire-response readiness and affect EPWP employment linked to the programme. 

It further contended that the tender was a service-provider agreement governed by procurement law that did not guarantee continued operational control by any particular contractor.

Working on Fire, it said, had not met the requirements for the interdictory relief it sought.

“The service it currently provides to the department is provided in terms of an agreement that has already been found to have been concluded unlawfully. Thus, save for the suspension order, the applicant has no right — even prima facie — to continue rendering the services pending its review,” the affidavit stated.

The department argued that the original review brought by Tefla had succeeded and that the reconsideration process vindicated the decision to revisit the original award.

“Not only was Tefla’s review successful but based on the re-evaluation, it has been vindicated in the sense that the tender should have been awarded to it at the outset. 

“The applicant has already had the benefit of more than three years under the unlawfully concluded contract. To allow it to run up the clock further would defeat Tefla’s right to effective relief,” the department argued.

Tefla, in its answering affidavit, also opposed the interim interdict and argued that Working on Fire was attempting to preserve the benefits of a service agreement declared invalid by the court in April 2025. Tefla said the earlier court order only temporarily suspended the declaration of invalidity to avoid disruption to national wildfire services pending a lawful re-award or new tender process.

The company argued that Working on Fire was seeking to extend that temporary arrangement beyond what the court originally contemplated.

Tefla further disputed Working on Fire’s contention that the department unlawfully reduced the scope of the tender, arguing that the original deliverables and operational requirements remained intact. It said disputes over the lawfulness of the award and the department’s handling of the procurement process should properly be determined during the Part B judicial review proceedings on a full record, rather than through urgent interim relief.

The Tefla Group said it accepted that the Working on Fire programme was important, as was the continuity of its services. 

“That is why the order of 1 April 2025 suspended the declaration of invalidity of Working on Fire’s agreement pending the signing of a new SLA pursuant to the re-award or a new tender,” the affidavit stated.

“The order struck a balance, by permitting Working on Fire to continue temporarily despite the invalidity of its agreement, until a lawful re-award or new tender could be implemented.

“Working on Fire now asks this court to alter that balance by extending its continued performance beyond the event contemplated in the order.”

It said it was willing and able to implement the programme once the service level agreement was concluded and a purchase order issued.

Judgment was reserved.