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[2022] ZALMPPHC 71
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Bophelong Construction (PTY) LTD v Roads Agency Limpopo (SOC) Limited (7765/2020) [2022] ZALMPPHC 71 (19 December 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
No 7765/2020
Reportable:
No
Of
Interest to the Judges: No
Revised
19/12/2022
In
the matter between:
BOPHELONG
CONSTRUCTION (PTY) LTD
APPLICANT
And
ROADS
AGENCY LIMPOPO(SOC) LIMITED
FIRST RESPONDENT
LILITHALETHU
TRADING 41 CC
SECOND RESPONDENT
JUDGMENT
LEDWABA
AJ
Introduction
[1]
Bophelong Construction (PTY) LTD (the applicant) is an unsuccessful
tenderer in the
bid allocated reference number RAL / T652C/2021 for
the upgrade from gravel to tar of Road P277/1 from Makuya to Masisi
villages
of the Vhembe District in the Limpopo Province (the bid or
tender). It is aggrieved that the first respondent awarded the tender
to the second respondent.
[2]
Apart from urgency prayer number 1 , the applicant prayed that:
(2)
the first respondent’s decision to disqualify its tender be
reviewed and set aside,
(3)
the first respondent’s decision to award the bid to the second
respondent together with any contract
/agreement pursuant to the
award of the bid be reviewed and set aside.
(4)
the tender be remitted back to the first respondent with direction
that the applicant’s bid be
reconsidered
de
novo
and
(5)
directing the first respondent to pay the costs of this application.
[3]
On the 1
st
April 2021, the first respondent advertised the
tender and set the 28
th
April 2021 as the closing date.
Having submitted its tender on the closing date of the 28
th
April 2021, the applicant learned on the 22
nd
September
2021 from the tender bulletin dated the 17
th
September
2021 that the first applicant awarded the tender to the second
respondent on the 11
th
August 2021
.
On the 7
th
October 2021 the applicant submitted the request in terms of the
provisions of Promotion of Access to Information Act 2 of 2000
(PAIA)
to obtain the reasons why its tender bid failed. By way of the letter
dated the 12
th
October 2021(the rejection letter) , the
first respondent replied to the PAIA request as follows:
Kindly be informed that
Bophelong Construction (Pty) Ltd was unsuccessful in the
above-mentioned bid for the reasons stated below:
1.
The bid required bidders to demonstrate relevant experience by
annexing to their
bids CVs of the State Agent, as well as completion
certificates of relevant projects that have been successfully
completed previously
by the bidders. For the functionality assessment
on relevant experience, Bophelong was allocated a score of 5 (out of
6). The score
so called allocated was for the experience of the
company in the performance of similar projects. This is attributable
to the fact
that Bophelong only attached a typed summary of its
experience but failed to attach completion certificates to this
effect, which
was expressly required on page T.17 of the bid
document. We attach hereto extracts of the tender document of
Bopehlong, in this
regard, marked as Annexure A (Curriculum Vitae of
O. Mataboge) and Annexure B (Letter of introduction and Recent
Contracts). Furthermore,
we attach hereto Annexure C, being an
extract of the Bid Evaluation Report (demonstrating the points scored
by Bophelong) and Annexure
D (bid requirements).
2.
Whereas the bid required that bidders submit proof that they possess
the requisite
plant and equipment, as listed in Annexure E, Bophelong
only submitted proof the plant and equipment contained in Annexure F.
it
is upon this premise that Bophelong was awarded a score of 4 out
of 15 for equipment functionality evaluation. In this regard, we
attach hereto an extract of the bid document of Bophelong marked as
Annexure E (equipment required in terms of the bid document
and
scores allocated therefore), as well as Annexure F (plant owned and
hire by Bophelong).
3.
In terms of the evaluation of the financial standing of the bidders,
points were
allocated as follows:
Bank rating A:
20 points
Bank rating B:
16 points
Bank rating C:
12 points
Bank rating D:
8 points
Bank rating E:
4 POINTS; AND
Bank rating F-G:
0 points
Bophelong, in its bid
document, as well as the letter from its bank, stated that it is
rated as a B, for which it was correctly
allocated a scare of 16
points. In this regard, an extract of the bid document of Bophelong
is attached hereto marked as Annexure
G (the bank rating). The scares
for the rating of the bank are detailed in page T.18 of the tender
document, which is attached
hereto marked as Annexure H.
[4]
In terms of the rejection letter, one of the tender invitation
requirements was that
the tenderers were required to demonstrate
relevant experience by attaching Competence Certificates of the
projects which have
been successfully completed (the disputed
documents). In terms of the rejection letter, instead of submitting
the disputed documents,
the applicant attached typed summary of its
experience without attaching the completion certificate. In its
answering affidavit,
the first respondent contends that the
Completion Certificates attached by the applicant and found in pages
78 to 110 of the record
do not meet the requirements of the
definition stated in the General Conditions of Contract for
Construction Works (2010) published
by the South African Institution
of Civil Engineering ( GCC 2010). This is because in the first
respondent’s view clauses
1.1.3 and 5.14.4 of the GCC 2010
define Completion Certificate as a certificate signed by the engineer
to the employer and the
contractor confirming the date on which the
works were completed.
[1]
The
applicant says what are missing are the portions of the completion
certificates bearing the signatures of the engineers.
[2]
The first respondent’s position is that this resulted in the
applicant being allocated the score of 5 of 6 points.
[5]
Irrespective of the documents attached by the applicant and
considered as part of
its bid documents, the common position appears
to be that the disputed documents were not part of the applicant’s
bid documents
considered by the first respondent’s Bid
Evaluation Committee (BEC). The question is whether the disputed
documents were
(as a matter of fact) attached by the applicant or not
and whether they were removed from the applicant’s bid
documents by
the first respondent’s officials or not.
The applicant avers that
they were included as part of the tender document and that the first
respondent’s officials removed
them with the results that the
first respondent unfairly and unlawfully disqualified/rejected its
bid. The first respondent’s
version is that the applicant’s
tender was disqualified because it did not include the disputed
documents.
The first respondent’s
submission is that since a dispute of fact, irresoluble on the
papers, has arisen in this review application,
which dispute was
foreseeable by the applicant, this court should use its discretion
referred to in Rule 6(5)(g) of the Uniform
Rules to dismiss the
applicant’s application.
[6]
The first respondent served its supplementary affidavit and prays
that its delivery
be condoned in terms of rule 6(5) of the Uniform
Rules. In this supplementary affidavit, the first respondent provides
the update
about the implementation of the tender.
[3]
It submits that in the event of the finding in favour of the
applicant, just and equitable remedy should be crafted to allow for
the completion of the project. There is no opposing to the delivery
of this supplementary affidavit. There is agreement between
the
parties that due to passage of time, the progress towards the
completion of the project and the duration of the contract between
the first and the second respondents,
[4]
the execution of the tender has “reached a point of no return”
that setting aside the awarding of the bid to the second
respondent
and cancelling the subsequent execution agreement between the first
and second respondents would not be a just and equitable
remedy
envisaged in section 8 of the Promotion of Administrative Act 3 of
2000(PAJA) . The parties agree that substituting the
second
respondent will not serve the purpose of ensuring that the affected
communities are provided with long awaited road. There
is agreement
between the parties that the other prayers, including that the matter
should be remitted back for re-adjudication
have been overtaken by
events and would be academic to grant them. The result is that the
only remaining issue as at the date of
hearing of this application is
prayer 2, namely the first respondent’s decision to disqualify
the applicant’s bid on
the basis that its tender documents did
not include the disputed documents. This is apart from prayer five
relating to the costs.
[7]
On behalf of the first respondent it was indicated that in terms of
rule 6(15) of
the Uniform Rules , it is still pursuing its
application to struck out from the applicant’s supplementary
affidavit what
it regards as scandalous, vexatious and or irrelevant
allegations by the applicant. The first respondent states that this
relates
to certain paragraphs in which the deponent stated that he
can only conclude that the disputed documents were removed from the
applicant’s bid documents by the first respondent’s
employee whose task was to compile the documents required for
consideration
or the first respondent’s employee could have
intentionally tampered with the applicant’s bid by removing the
disputed
documents so as to sabotage the applicant’s
opportunity to be awarded the tender. This could have occured at
stage after
the disputed documents were deposited into the tender
box, with the result that they never served before the BEC during the
valuation
process. Relying on
Hacker
v Hartmann & Others
(2019) ZAECPEHC ( 10 April 2019) the first respondent states that the
matter sought to be struck out must
indeed be scandalous, vexatious
or irrelevant. Citing
Beinash
v Wixley 1997(3) SA 721 (SCA) pg
732 and National Director of Public Prosecution v Zuma 2009(2) SA
277(SCA) par 81, the first respondent
said a court must be satisfied
that the affected party would be prejudiced if the application is not
granted. Relying on paragraphs
12-17 of the affidavit supporting the
striking out application, the first respondent submits that short of
granting the application
it will be prejudiced.
[8]
The first respondent submits that since the applicant did not reserve
for itself the
right to supplement its founding affidavit upon the
receipt of the record, it is irregular for the applicant to serve the
supplementary
affidavit after the receipt of the record. In terms of
rule 53(2)of the Uniform Rules, the contents of the founding
affidavit are
the grounds, the facts and the circumstances upon which
an applicant relies to have the decision set aside. Rule 53(4) allows
an
applicant to supplement the supporting affidavit. As a matter of
right, rule 53 allows an applicant to amend the h founding papers
after the delivery of the rule 53 record.
[5]
No provisions of rule 53 requires an applicant to reserve the right
to supplement a founding affidavit which supports the review
application.
[9]
The applicant submits that the first respondent’s actions were
allegedly procedurally
unfair,
[6]
that the first respondent failed to consider relevant
consideration
[7]
and that the
first respondent’s action of disqualifying the applicant’s
tender was not rationally connected to the
reasons provided.
[8]
Discussion
[10]
Once an administrative action is reviewed and set aside under section
6 of PAJA, section 8(1)
provides a court with a wide discretion to
grant any order that is just and equitable, including remittal and
substitution. The
remedies envisaged in section 8 of PAJA are in the
main of a public law and not private law character.
[9]
For the purpose of deciding this matter and in terms of section 8(1)(
c) of PAJA, a court may grant any order that is just and
equitable,
including setting aside the administrative action and either
remitting the matter back for reconsideration or , in exceptional
cases, substituting or varying the administrative action, correcting
a defect or directing the administrator to pay compensation.
Once an
administrative action is reviewed and set aside, what normally
follows is remittal or in exceptional cases, substitution.
Just
like in the case of section 172(1)(b) of the Constitution in relation
to constitutional matters, section 8 of PAJA confers
on a court in
proceedings for judicial review a generous jurisdiction to make
orders that are just and equitable.
[10]
[11]
The applicant’s remaining prayer is that the first respondent’s
decision to disqualify its tender be reviewed and
set aside. In the
light of the agreement between the parties that just and equitability
dictates that the second respondent proceeds
to finalise the project,
the focus is no longer on reviewing and setting aside the first
respondent’s decision to award the
tender to the second
respondent and cancel the resultant agreement. The question is
whether the first respondent’s decision
to disqualify the
applicant’s tender is just and equitable and related to that,
the question is is whether such a remedy
settles the dispute between
the applicant and the first respondent. This question arises in the
context of the general principle
that, a judgment or order is
required to have three attributes: it must be final in effect and not
susceptible to alteration by
the court of first instance, it must be
definitive of the rights of the parties and must have the effect of
at least disposing
of the relief claimed in the main proceedings.
[11]
It must have final effect
[12]
and effectively vindicate the violated right.
[13]
[12]
The applicant is not praying for the declaration of any right. Just
reviewing and setting aside
the first respondent’s decision to
disqualify the applicant where the second respondent still proceeds
to complete the tender
is not what the applicant intended. It is not
the applicant’s case that the second respondent is not
qualified to be awarded
the tender and execute the contract. The
applicant provided no evidence as to what would have happened had the
tender not been
awarded to the second respondent. The applicant’s
own version is that its tender was the fourth lowest in terms of the
tender
pricing. Even if the applicant was to succeed in having the
first respondent’s decision to disqualify it set aside, there
is no evidence that this necessarily disqualify the second respondent
from continuing with the execution of the tender to be substituted
by
the applicant. Even if the second respondent was to be disqualified
from executing the tender, any of the second and third qualifying
bidder in terms of pricing could qualify to be awarded the tender.
This means setting aside the first respondent‘s decision
to
disqualify the applicant’s tender will not necessarily oblige
the first respondent to re-evaluate the tender with a view
of the
applicant executing the tender, which was the applicant’s
ultimated goal.
[13]
The question is whether the applicant’s bid was lawfully
disqualified or not. The narrow
issue related to that is whether the
disputed documents were attached and submitted as part of the
applicant’s bid documents
or not. The first respondent avers
that the applicant’s bid was lawfully disqualified while the
applicant denies this.
[14]
The parties explain their respective general procedures in dealing
with the tender documents and attach affidavits of respective
people
and or officials who deal with the tender documents.
[14]
Mr Popper and Oelofse explained that they personally inspected the
applicant’s tender bid and confirm that the disputed documents
were attached. Mrs Van Jaarsveld and Mr Morris stated that they
reviewed and bound the tender bid to avoid any document being
dislodged and fall out of the bundle. The applicant regards this as
direct uncontradicted eyewitness evidence.
The
applicant says the first respondent’s response moves the goal
posts from saying the disputed documents were not attached
to saying
they were not signed by engineers.
[15]
[15]
To support the submission that its processes are reliable to make a
claim that the disputed documents
were not attached to applicant’s
tender documents, the first respondent relies on the security
environment in which the bid
documents are handled.
[16]
To bolster its submission that it is impossible for its officials and
or third parties to temper with the submitted bid’s
documents
without detection, the first respondent showed the picture of the
tender box slot used to deposit tender documents and
state that once
deposited in the slot, it is impossible for any person to retrieve
the bid documents without this being noticed.
It explains that the
only way to access and retrieve the bid documents is from inside its
building through the door which can only
be opened by unlocking
biometic key lock and a normal key lock. It explains that only two
people in the entire organisation have
access keys ( both biometic
and manual). These people are Mr M Dinala and Ms S Selolo both from
supply chain management division.
They deposed to the affidavits to
the effect that until the handing over of the bid documents to the
BEC, at no stage did they
open the tender box to retrieve the bid
documents. Their affidavits explain that the tender box was opened on
the 28
th
April
2021 in the presence of Messrs M Dinala, Mabilu , Kgomeswana and Ms S
Selolo, Ms Maribana and Ms Rangoato and they all signed
the tender
opening register, whereafter the documents were stored under lock and
key until they were handed over to the BEC by
Mr M Dinala and Ms S
Selolo. They explained that it would have been impossible for anyone
to remove the disputed documents from
the applicant’s bid
documents without them noticing it. They deny that they removed the
disputed documents and compiled them
into a separate bundle as
suggested by the applicant.
The first respondent’s
supplementary affidavit states that given the explained process,
there is nowhere through the chain
of handling the bid documents
where they are exposed to an opportunity for any person to
intentionally tampered with and or sabotage
any bid as suggested by
the applicant in its supplementary affidavit.
[16]
To demonstrate that the applicant is unjustified in relying on its
systems, the first respondent
points to the previous occasion under
case number 3382/2021 in this division when the applicant made the
similar claim that in
terms of its own internal processes, all
mandatory tender documents were attached to its bid. Believing and
relying on its system,
the applicant brought the review application,
only to later realised that it made a mistake and withdraw the review
application.
[17]
The first
respondent submits that the applicant’s directors, like any
other human being are fallible and not immune from
making mistakes.
It says the applicant’s system is not without flaws. The first
respondent submits that the reasonable inference
to be drawn is that
the applicant committed the similar error of not attaching the
disputed mandatory documents.
The
applicant’s reply is to the effect that in the previous
occasion when its review application was withdrawn, that was due
to
confusion that existed between two tender requirements, which
resulted in a dispute with regard to the documents that were
submitted and this has nothing to do the integrity of its system
.
[18]
It says what happened in
the previous withdrawn review application is irrelevant inadmissible
evidence
[19]
[17]
Together with the documents supplied as part of the record in
response to rule 53(1)(b) notice,
the applicant expects the first
respondent to submit the original tender documents as submitted,
together with its original binding
,( something not raised in the
pleadings but in the applicant’s heads of argument). This
ignores the fact that once received
and when processed, the bid
documents are not kept in their original form. Copies were made for
various purposes, including for
the purpose of Rule 53 itself. The
applicant expects that in order for real dispute of facts to arise,
the first respondent should
provide direct eyewitness testimony by a
witness such a member of the BEC.
[18]
The applicant submits that it provided what it claims is direct
uncontradicted eyewitness evidence
by Mr Popper and Oelofse that they
personally inspected the applicant’s tender bid and confirm
that the disputed documents
were attached. It expects that in order
for real dispute of facts to arise, the first respondent should
provide direct eyewitness
testimony by the witness, such as BEC
member, who scrutinised and observed the tender documents that the
disputed documents were
not in the bundle
.
This misses the
point that the basis of assessing the first respondent’s
version is whether it is so far-fetched or clearly
untenable that the
court is justified in rejecting it merely on the papers. The fact
that the witnesses were not put into the witness
box to test the
authenticity of their evidence is the applicant’s choice, even
after receiving the record provided in terms
of section 53(3)(b) of
the Uniform Rules and this cannot be used to the disadvantage of the
first respondent.
[19]
The first respondent submits that a genuine dispute of fact relating
to the disputed documents
has arisen and that this court should use
its discretion to dismiss the applicant’s application in terms
of rule 6(5)(g)
of the Uniform Rules. The first respondent’s
case is that given the Plascon-Evans
[20]
and other cases
[21]
, the final
interdict in the case of dispute of facts can only be granted if the
facts alleged by an applicant which have been admitted
by a
respondent, together with the facts alleged by a respondent, justify
such order. It submits that the handling of the disputed
documents
should be assessed on the basis of Plascon-Evens principle and that
its version is not so far-fetched that it should
be rejected merely
on papers. This is because an applicant who seeks final relief using
motion proceedings must, in the event of
a dispute of fact, accept
the version set up by a respondent unless the latter’s
allegations are, in the opinion of the court,
not such as to raise a
real, genuine or
bona
fide
dispute
of fact or are so far-fetched or clearly untenable that a court is
justified in rejecting them merely on the papers. The
recent decision
of Mamadi
[22]
dealt with the
relation between rules 6(5)(g) and 53 of the Uniform Rules. The court
said a litigant who brings a review in terms
of rule 53, and thus on
motion, where disputes of fact are reasonably foreseeable, does not
act in an impermissible way. In order
to properly give effect to
their section 34 Constitutional rights, litigants are
constitutionally entitled to make use of rule
53 in review
proceedings. It therefore cannot be that a litigant can be penalised
through the use of rule 6(5)(g) of the Uniform
Rules merely because
rule 53 was utilised. A court does not have a discretion under rule
6(5)(g) of the Uniform Rules to dismiss
an application brought in
terms of rule 53 of the Uniform Rules on the basis that reasonably
anticipated disputes of fact has arisen
on the papers. This will
penalise a litigant for making use of the procedural advantage of
rule 53 of the Uniform Rules.
[23]
The court further said once a rule 53 applicant has enjoyed the
benefit of rule 53 by receiving the record and in the face of
disputes of fact, such applicant should timeously apply for a
referral to oral evidence or trial. This is because where timeous
application is not made, courts are, in general, entitled to proceed
on the basis that the applicant has accepted that factual
disputes
will be resolved in line with the Plascon-Evans rule.
[24]
Having received the record, the applicant has not applied for
referral to oral evidence or trial and has accepted that in case
of
the finding that there are disputes of fact, they will be resolved in
line with the Plascon- Evans rule. Given the evidence
from both
sides, the dispute whether as a matter-of-fact valid disputed
documents were attached to the applicant’s bid cannot
be
resolved on papers. The first respondent’s version is not so
far-fetched that it should be rejected merely on papers.
The
applicant is seeking the final relief on motion proceedings and must
accept the version set up by the first respondent, unless
the
latter’s allegations are so far-fetched or clearly untenable to
be rejected merely on the papers. This is not the applicant’s
submission in respect of the first respondent’s version.
[20]
The applicant provided no motive (such as bad faith, dishonesty and
or ulterior purpose) for
the first respondent’s staff or
officials to sabotage its opportunity to be awarded the tender.
[21]
Accepting that alternative words could have been used, there is no
indication that by using the
words such as sabotage on its own
displays any ill or bad intention on the part of the applicant’s
employees. The applicant
says it only drew inferences to assist the
court.
[25]
I could not find
any prejudice on the part of the first respondent, even on the basis
that its reputation has been damaged by the
applicant’s
allegations.
[22]
The applicant’s heads of argument make mention of the costs of
the irregular proceedings
and the costs of the 5
th
September 2022 which were reserved to be determined by the court
hearing this application. I could not find these costs to enable
me
to make an order. I suggest that should the parties wish to pursue
these costs; they should make the necessary arrangements.
Order
[1]
The application is dismissed.
[2]
The first respondent’s delivery of its supplementary affidavit
is condoned.
[3]
The first respondent’s application to struck out from the
applicant’s supplementary
affidavit what the first respondent
regards as scandalous, vexatious and or irrelevant allegations in
terms of rule 6(15) of the
Uniform Rules is dismissed.
[4]
The applicant is ordered to pay the costs of this application on
party and party scale, including
the cost relating to the employment
of two counsels.
LEDWABA
LGP
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION : POLOKWANE
APPEARANCES
For the applicant
:
Adv GJ Diamond
Instructed by:
Cox Yeats Attorneys
C/O AH Burger Attorney
Inc
Polokwane
For the first respondent
:
Adv JA Motepe SC
Adv Lekgetho N
Instructed by:
Legodi Attorneys
Polokwane
Heard on:
17
th
October 2022
Judgement delivered on:
19 December
2022
[1]
Paragraph 60 and 61 of the answering affidavit.
[2]
Paragraph
8.2.5 of the replying affidavit.
[3]
It says 40.31% of the project was implemented as at the 7
th
October 2022 and that by the 22
nd
December 2022 the project will reach practical completion to be
eligible for usage at the end of February 2023.
[4]
The
contract duration was intended to be nine months and this was
extended by the first and second respondents. It is common
cause that the contract having ran for more than four months, it has
reached a point of no return to it be cancelled.
[5]
Mamadi
& Another
v
Premier of Limpopo Province & Others (
2022) ZACC 26(
6/07/22)(Mamadi)
– par 27 and 39
[6]
Paragraph 44.1 of the founding affidavit.
[7]
Paragraph 46.1 of the founding affidavit
[8]
Paragraph 46.2 of the founding affidavit.
[9]
Jurgens
Johannes Steenkamp N.O. v Provincial Tender Board of the Eastern
Cape
(
2006) ZACC 16
; 2007(3) SA 121(CC); 2007(3) BCLR 300(CC)
(
Steenkamp)
–
par
30
[10]
Corruption Watch NPC & Others v President of Republic of
the Republic of South Africa & Others; Nxasana v Corruption
Watch NPC & Others (
2018) ZACC 23
;
2018 (2) SACR 442(CC)
;
2018(10)BCLR 1179(CC);
Steenkamp
–
par
30
.
[11]
Arcus
v Arcus
(2022) ZASCA 9
; (2022)All SA 626(SCA) 2022(3) SA 149(SCA)(
21/01/22)-par 15 : Zweni v Minister of Law and Order
(1993) 1 All SA
365(A)
; 1993(1)SA 523(A) at 5321-533
[12]
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
(2010)
ZACC 6
; 2012(4) SA 618( CC) ; 2010(5) BCLR 457(CC) -par 49
[13]
Steenkamp
-
par 29
[14]
Paragraphs
27- 35 of the applicant’s founding affidavit.
[15]
Paragraph
3.5.11 of the applicant’s heads of arguments.
[16]
Paragraph
83-88 pages 353-54 of the answering affidavit and paragraph 10 of
the supplementary affidavit.
[17]
Paragraph
42-51 of the answering affidavit.
[18]
Paragraph 10.3 and 4 of the applicant’s reply.
[19]
Replying
affidavit- para 10.3-10.6- pages 720-21
[20]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd (
1984) ZASCA 51
; 1984(3)
SA 623(A) at 634H-1( Plascon-Evans case)
[21]
Tsambo v Sengadi(
2020) ZASCA 46-
par 46 ;
Wrightman
t/a
W Construction v Headfour (Pty) Ltd & Another
(2008) ZASCA 6
;
(2008) 2 All SA 512(SCA)
; 2008(3) SA 371 - par
12
[22]
Mamadi
& Another v Premier of Limpopo & Others (2022) ZACC 26(
Mamadi).
[23]
Mamadi-
par 43
[24]
Mamadi-
par 44.
[25]
Paragraph
10.2 of the replying affidavit.