About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2022
>>
[2022] ZAMPMBHC 63
|
|
Mathata General Trading v Head of Department Mpumalanga Department of Education and Another (1352/2022) [2022] ZAMPMBHC 63 (5 August 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 1352 / 2022
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
05 August 202
In the matter between:
MATHATA
GENERAL TRADING
APPLICANT
And
HEAD
OF
DEPARTMENT FIRST
RESPONDENT
MPUMALANGA
DEPARTMENT
OF
EDUCATION
MEMBER
OF THE
EXECUTIVE SECOND
RESPONDENT
COUNCIL:
MPUMALANGA
DEPARTMENT
OF EDUCATION
JUDGMENT
RATSHIBVUMO J:
Delivered:
This judgment was handed down
electronically by circulation to the parties' representatives by
email. The date and time for hand-down
is deemed to be 14H00 on 05
August 2022.
[1]
The Application.
This application was
enrolled to be heard on urgent basis, as envisaged by Rule 6(12) of
the Uniform Rules of the High Court. The
Applicant seeks relief in
the following terms:
1.1.
That the First and/or Second Respondent’s
(the Respondents) decision on 14 June 2022 to “insource”
the supply
of food to boarding schools within the Mpumalanga Province
be reviewed and set aside;
1.2.
That the First Respondent termination
notice dated 22 June 2022 which terminates the Applicant’s
contract with the Department
of Education under contract no.
EDU/059/13/MP be declared unlawful and void;
1.3.
That the Respondent be found to be in
contempt of court order, issued out of this Honourable Court on 12
April 2022 by the Honourable
Madam Justice Greyling-Coetzer AJ;
1.4.
That the Respondents be committed to
imprisonment for contempt of court for a period of 30 days;
1.5.
That the above prayer
supra
be suspended until the litigation under case no. 1352/2022 has been
finalised.
1.6.
Should the Respondents fail to comply with
this order, the Applicant should be allowed to approach this court
for an order for the
Respondent’ committal to prison, on the
same papers, supplemented if necessary.
1.7.
That the Applicant be granted leave to
supplement its papers, should the need arise.
1.8.
That the Respondents be ordered to pay the
costs of this application on an attorney and client scale including
the costs of two
counsel.
[2]
Background.
Following is the
background that led to this application. Although the papers are
silent on the history of the relationship between
the Applicant and
the Respondents, all indications are that the Applicant had a
contract with the Department of Education, Mpumalanga
(the
Department) under contract no. EDU/059/13/MP
inter alia
to
supply food at boarding schools in Mpumalanga Province. This contract
has since lapsed. What remained was a month-to-month contract
renewal
with the understanding that should the contract not be extended, the
Department shall give the Applicant 30 days’
notice of its
intention to not renew the contract.
[3]
The Department did send such a letter on 22
June 2022 to the Applicant. This letter was referred to as a letter
of termination of
contract in the founding affidavit. It is this
letter that aggrieved the Applicant and set this application in
motion. Both parties
agree that the application is urgent given the
limited time left before the implementation of the decisions by the
Respondents.
[4]
Prior to launching this application, the
Applicant brought an urgent application against the Respondents in
this case under the
same case number (the first urgent application).
The Department had on the 13
th
October 2021 advertised a tender inviting parties interested in
supplying and delivering dry food products, fresh fruits and
vegetables
to quintile 1-3 primary, secondary and special schools
(including boarding schools) falling under the Department, to apply.
The
contract would last for a period of three years.
[5]
At the time, the Applicant was one of the
parties contracted to offer these services as indicated above. In the
first urgent application,
the Applicant sought an order declaring
that Tender Bid Invitation No. EDU150/21/MP and the decision to
publish it, was unlawful,
unreasonable and inconsistent with the
legislative frame work and section 217 of the Constitution. The
Respondents agreed to have
the tender set aside albeit for different
reasons, and a draft consent was made an order of court on 12 April
2022.
[6]
Strange as it may be, in terms of the
“Consent Order,” the Respondents agreed not to proceed
with the tender process
under Bid Number EDU/150/21/MPU “pending
the outcome of this litigation.” The matter was therefore
postponed to 25
October 2022 to provide interested parties an
opportunity to take note of the application and for anyone of them
interested in
opposing the application to enter a notice to oppose
the application. It is this consent order that gave rise to the
application
for the Respondents to be held in contempt of court.
[7]
The “insourcing” of
services.
The
current application was kick started when the deponent to the
Applicant’s affidavit (Mr. Mashile) came across an internal
memo of the Department that suggested that on 14 June 2022, the
Department took a decision to “insource” the supply
of
food to boarding schools within the Mpumalanga Province. No details
were given as to how he came to be in possession of this
memo, but
unsurprisingly, he must be having eyes within the Department. The
said memo is said to originate from the Department’s
Chief
Director – Finance. The contents of the memo, as well as the
decision referred to therein are not in dispute. Because
of its
importance to this application, it is necessary to quote it in full.
It reads,
[1]
“
Good
morning colleagues, I hope this finds you well.
Hope we are well aware of
the decision by management that was finalised on 14 June 2022 at MRTT
hotel school that the Department
will insource the supply of food to
all our boarding schools.
The Head of Department
has issued the 30 days’ notice to all affected contractor on
the supply of food to boarding schools
and has indicated that the new
system will start on the 1
st
of August 2022.
A program to implement
this project is done and is being implemented and:
As part of the
implementation plan, the CD: Financial Management will visit all six
boarding schools as per below mentioned program.
The purpose of the
visit is to assess the readiness and the capacity of each boarding
school to handle this function and make proposal
for uniform system.
The assessment will include among others:
-
Existing record keeping and operating
systems,
-
Receiving of food stock,
-
Daily issuing of stock for cooking,
-
Safety of food stock from theft,
-
Handling of perishable stock (including
cold storage),
-
Stock ordering systems,
-
Daily menus – with view to review
The District offices are
expected to send at least one official, preferably from SCM to join
the CD in this assessment. This process
will then be followed by a
joint meeting with all the Principals and SGB chairpersons to
finalise the processes and memorandum
of understanding by Tuesday the
12
th
, July 2022.
The visit to boarding
schools will take place on the 28
th
, 29
th
June
is Gert Sibande District, 30
th
June and 01 July, Nkangala
Districts and the 5
th
July is Thaba Chweu Boarding School
and 6
th
July is Shongwe Boarding School.
You are requested to
provide the CD: Finance with names of officials per district that
will assist this process on the dates proposed
above.
NSNP – The NSNP
program should prepare to include these boarding schools as an
additional scope of work to the current service
providers on affected
circuits. This means the NSNP service provider must be identified,
notified and be given the necessary numbers
of students and delivery
schedules.
The
office of the CFO remains responsible for coordinating this whole
process and therefore any inquiry should be communicated to
Thenjiwe
Nxumalo @ 013 766 5299 and
th.nxumalo@mpuedu.gov.za
.
Your cooperation in this
regard will be appreciated.”
[8]
The understanding and/or the interpretation
Mr. Mashile attached to this memo is clear from the founding
affidavit when he says,
“[w]hat this means is that service
providers who are providing food products to primary and secondary
schools, and not boarding
schools, will now be appointed to also
provide food to boarding schools. Contrary to the usual meaning of
the word, “in source,”
outside service providers will
still be delivering the service and food…
[9]
Accordingly,
if service providers are appointed contrary to the provisions of
section 217 of the Constitution, not only would it
have occurred
without a tender bid invitation to provide food for disadvantaged
learners at boarding schools, but there exists
the real possibility
that the wrong and incapable service providers will be appointed to
the detriment of disadvantaged learners.”
[2]
He concluded therefore that the Respondents have appointed service
providers to provide food to boarding schools without going
through a
tender process and in so doing, they were in contempt of court. This
was with reference to court order granted by consent
under the first
urgent application.
[10]
With that understanding, the Applicant
wrote to the Department informing it that its letter of termination
of the contract was unlawful
and void. The Applicant further demanded
an undertaking from the Department that it will be allowed to
continue with the services
of supplying food to the boarding schools
until the litigation in the first urgent application was finalised.
When that undertaking
was not forthcoming, this application was
launched.
[11]
Condonation – late filing of
answering affidavit.
I pause to note that
there was a condonation application by the Respondents after they
failed to file the answering affidavits on
time. The Respondents aver
that they could not file the affidavits on time due to civil unrest
in their area which affected a number
of offices including those of
the respondents in that many officials were requested to work from
home. The counsel briefed was
also not available on time for
consultation. The condonation was not opposed by the Applicant who
also filed a replying affidavit.
The condonation was allowed.
[12]
Respondents’ case.
In the answering
affidavit, the First Respondent confirmed the Department’s
intention to move away from utilizing external
service providers to
provide food stuffs for the preparation of breakfast, lunch and
supper for learners at the six boarding schools
in the province, to
“inhousing” these services. This was said to be the
initiative of the MEC of Education. The model
thereof was the
brainchild of Mr. Shipalana (the CFO). The CFO came up with the model
so as to counter the many years in which
the Department was subjected
to gross overcharging by the service providers including the
Applicant. The Applicant was therefore
portrayed as a person with no
interests of the learners at heart, but one who was only interested
in dragging out the month to
month contract with the Department, for
its personal enrichment.
[13]
The
CFO demonstrated the overcharging referred to by the First Respondent
in a confirmatory affidavit. The Applicant and another
service
provider apparently charge R61 and R67 respectively, per child for a
three meals’ delivery in a day. With insourcing
of the
foodstuff from the open market, having cut out the service provider
or the “middleman,” The costs per child
is expected to
come down to R25 per child per day. For this financial year, this
would have saved the Department as much as R6
million per month or
R72 million over the 12 months’ period. The CFO was therefore
entrusted with the responsibility of investigating
the feasibility of
implementing a new system in terms of which the various boarding
schools would be enabled to source their own
produce from suppliers
in the open market, as opposed to sourcing it from the existing
service providers.
[3]
In
essence, the hostels’ superintendents will be given money by
the Department to pay for foodstuff directly from the open
markets.
[14]
Application to strike out.
It is prudent at this
stage to deal with the Respondents’ application to strike out
the Applicant’s replying affidavit.
The Respondents argue that
the Applicant in its replying affidavit did not persist with a view
that the Respondents intended to
unilaterally and behind the
Applicant’s back, appoint some other service provider under the
guise of “insourcing”
as was its case in the founding
affidavit. The Applicant’s approach in the replying affidavit
was summarised under paragraph
5.4 of its replying affidavit where it
alleged,
“
If
the Department’s new “insourcing model was to be
implemented, and the First Respondent for example hands out an amount
of money to the hostel superintendent (according to his/her budget)
to buy food from suppliers, it would mean that the Department
is
using State monies to provide meals for the learners. Such hostel
superintendent is then simply acting as a procurement agent
on behalf
of the Department and this is an outright circumvention of the
provisions of section 217 of the Constitution.”
[4]
[15]
The Respondents hold the view that the case
for the Applicant as presented in the replying affidavit has shifted
from what it was
in the founding affidavit and for that reason, the
whole replying affidavit should be struck out as an abuse of process.
This was
because it introduces a new case altogether, different from
the one in the founding affidavit. The Applicant opposed this
application
saying it has not shifted from its application as
supported by the founding affidavit. All it did was to respond to
allegations
in the answering affidavits. This application was heard
together with the main application.
[16]
The
proper approach to these issues was enunciated by Caney J in
Bayat
and Others v Hansa and Another
[5]
where
he held,
“
The
principle which I think can be summarised as follows... that an
applicant for relief must (save in exceptional circumstances)
make
his case and produce all the evidence he desires to use in support of
it, in his affidavits filed with the notice of motion,
whether he is
moving
ex parte
or on notice to the respondent, and is not permitted to supplement it
in his replying affidavits (the purpose of which is to reply
to
averments made by the respondent in his answering affidavits), still
less make a new case in his replying affidavits.”
[17]
The application to strike out is premised
on Rule 6(15) of the Uniform Rules which provides,
“
The court may on
application order to be struck out from any affidavit any matter
which is scandalous, vexatious or irrelevant,
with an appropriate
order as to costs, including costs as between attorney and client.
The court may not grant the application
unless it is satisfied that
the applicant will be prejudiced if the application is not granted.”
[18]
As
was noted by Viljoen J in
Titty's
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd,
[6]
“
The
use of the word "may" in Rule 6 (15) of the Uniform
Rules of Court merely indicates that the Court has a discretion
in an application to strike out matter from an affidavit but, in
spite thereof, the sub-rule was not intended to be exhaustive
of the
grounds upon which such an application may be brought. The Court
still has an inherent jurisdiction to grant relief where
the Rules of
Court make no provision therefor. It has always been the practice of
the Courts in South Africa to strike out matter
in replying
affidavits which should have appeared in petitions or founding
affidavits, including facts to establish
locus
standi
or the jurisdiction of the
Court. It lies in the discretion of the Court in each particular case
to decide whether the applicant's
founding affidavit contains
sufficient allegations for the establishment of his case.”
[19]
In considering the above, the court should
be alive to the position adopted in
Reiter
v Bierberg and Others
where it was
held,
“
A
petitioner for an interdict against spoliation is entitled to embody
in his petition only sufficient allegations to establish
his right,
and in his replying affidavit he may supplement the information in
the petition by anything further to enable him to
refute the case put
up by respondent.”
[20]
I
am in respectful agreement with the approach by Viljoen J in
Titty's
Bar
when
he held that it lies of course, in the discretion of the Court in
each particular case to decide whether the applicant's founding
affidavit contains sufficient allegations for the establishment of
his case. Courts do not normally countenance a mere skeleton
of a
case in the founding affidavit, which skeleton is then sought to be
covered in flesh in the replying affidavit. In that case,
he held
that the applicant had not made out even a skeleton of a case in so
far as his
locus
standi
rests on a
stipulatio
alteri.
[7]
[21]
In
this case, the Applicant’s case in the founding affidavit has
been to set aside the respondents’ decision taken on
14 June
2022, to “insource” the supply of food to boarding
schools within the Mpumalanga Province.
[8]
It went on to aver,
“
The
unilateral decision by the Respondents without going through a proper
procurement process gives rise to an aberration, when
considering the
requirements for tenders and administrative action… With their
decision, the Respondents unlawfully failed
to procure the services
to supply food to boarding schools in accordance with a system which
is fair, equitable, transparent and
cost-effective as required by
section 217 of the Constitution and the Procurement Act and
Regulations.”
[9]
[22]
Applying the
Titty's
Bar
principles to the facts
in
casu
, it is clear that the Applicant
made out its case in the founding affidavit and there is no
substitution introduced by the replying
affidavit. All that the
replying affidavit does is to reply to the averments contained in the
answering affidavits. The Applicant
seeks to supplement its case as
contained in the founding affidavit by trying to show that it would
be entitled to the remedy sought
even on the version of the
Respondents. In other words, even if the Respondents do not outsource
the services of a service provider,
what they seek to achieve by
insourcing such services, should be seen as procurement which
requires certain compliance that has
not been adhered to.
[23]
In my view, the Applicant cannot be said to
have changed its case and now presenting a new one in the replying
affidavit. What may
have changed could be the basis or reasoning for
its application. However, the replying affidavit can be read as a
response to
the answering affidavit in which it demonstrates how even
on that version, it would be entitled to the relief sought in the
notice
of motion. For that reason, the application to strike out has
to fail.
[24]
Review of the decision to
“insource.”
The
Promotion of Administrative Justice Act, no. 3 of 2000 (PAJA)
provides that
a
court or tribunal has the power to judicially review an
administrative action if the administrator who took it was not
authorised
to do so by the empowering provision; a mandatory and
material procedure or condition prescribed by an empowering provision
was
not complied with; the action was procedurally unfair; the action
was materially influenced by an error of law; the action
taken
contravenes a law or is not authorised by the empowering provision;
or the action is otherwise unconstitutional or unlawful.
[10]
[25]
Section 217 of the Constitution of the
Republic of South Africa provides the following:
“
217
Procurement:
When an organ of state in
the national, provincial or local sphere of government, or any other
institution identified in national
legislation, contracts for goods
or services, it must do so in accordance with a system which is fair,
equitable, transparent,
competitive and cost-effective.”
Thus
any action or decision taken without compliance with section 217 of
the Constitution renders it unconstitutional and invalid
and subject
to review and setting aside in terms of the principle of legality or
PAJA.
[11]
[26]
The Respondents took a narrow approach in
responding to this application. Their affidavits and the heads of
arguments presented
on their behalves fall short of dealing with the
validity of the decision to insource the provision of foodstuff to
the boarding
schools. Their response focused solely on whether they
intended to appoint external service providers or not. This narrow
approach
was in my view, a missed opportunity to deal with how they
intended to circumvent section 217 of the Constitution in their new
model of insourcing the services. Even after the Applicant in its
replying affidavit highlighted that there would still be
non-compliance
with the Constitution if the Respondents proceed with
their plans to insource in the manner that they have presented; the
Respondents
chose not to answer this and did not request to file
supplementary affidavits to that effect.
[27]
The closest that the Respondents come to
deal with the validity and/or the constitutionality of their
insourcing model is when the
First Respondent in response to
accusations of contempt of court said,
“
The
new insourcing initiative means no more than this:
(a)
Whereas the various hostels have until now
sourced their produce through the various service providers
(including the Applicant)
at exorbitant prices, which the Department
has been paying to the service providers, the hostels will henceforth
source their produce
in the open market at reasonable market relate
prices and the Department will pay for this.
(b)
But
other than that, the status
quo
will remain the same.”
[12]
(c)
the
said decision does not require compliance with any of the procurement
related statutes
,
relied on by the Applicant.
[13]
[My emphasis]
No
elaboration was made as to how section 217 of the Constitution would
not be applicable. The CFO however makes it clear in the
confirmatory
affidavit that in terms of the new initiative, each hostel will
henceforth source their own produce from the open
market and the
Department will pay for it.
[14]
[28]
If the savings expected from this model are
expected to be R72 million per annum, the actual spending in the
purchase of the foodstuff
can be estimated to be in hundreds of
millions of rand in public purse. It is not explained as to how the
spending of these millions
in purchasing foodstuff from open market
is not procurement. Question lingering in anyone’s mind after
hearing how the insourcing
is to be executed is how the hostel
superintendents will choose the shops and/or farms from which the
food is to be purchased.
Are there any criteria for making that
choice? What safeguards are there in place to prevent abuse,
corruption and to ensure that
all the shops, wholesalers and farms
will have an equal opportunity to bid for supplying the foodstuff? Is
there any committee
that will help the superintendents in this
regard? If so, how is it composed? Is this not the purpose for which
section 217 exists,
to ensure that the process is fair, equitable,
transparent, competitive and cost-effective?
[29]
In
line with section 217 of the Constitution, the Public Finance
Management Act, no. 1 of 1999 (PFMA) provides that
the
accounting officer for a department, trading entity or constitutional
institution must ensure that that department, trading
entity or
constitutional institution has and maintains effective, efficient and
transparent systems of financial and risk management
and internal
control; an appropriate procurement and provisioning system which is
fair, equitable, transparent, competitive and
cost-effective.
[15]
[30]
It
would appear the confusion is over the meaning of procurement. In
Airports
Company South Africa SOC Limited and Others v Imperial Group
Limited
[16]
ACSA found itself in a similar predicament when it held a view that
the provisions of section 217 of the Constitution are not applicable
to its RFB (Requests for Bids for the granting of car rental
concessions). It argued that this was because it was merely granting
concessions to bidders and not contracting for goods and services for
itself. It asserted that ‘procurement’ is confined
to
where goods or services are procured for one’s own use. It was
contended further that there was nothing in the language
of section
217 that indicated that the disposal and letting of state assets must
be subject to the same provisions as those concerning
procurement.
[31]
The
Supreme Court of Appeal (the SCA) however held that the language used
in s 217 of the Constitution is clear and unambiguous.
It is now
settled that when interpreting legislation, the point of departure is
the provision itself, read in context and having
regard to the
purpose of the provision.
[17]
The ordinary meaning of ‘procure’ is ‘obtain’.
Notably, Article 2(j) of the UNCITRAL Model Law on Public
Procurement
[18]
defines ‘procurement’ as ‘the acquisition of goods,
construction or services by a procuring entity’. It
does not
limit procurement to state expenditure. Section 217(1) spells out
what ‘procurement’ means, which is ‘to
contract for
goods or services’. Section 217 does not restrict the means by
which goods and services are acquired. It thus
places the meaning of
the word beyond doubt. ACSA suggests that the RFB is not directed at
procurement but only at contracts for
the lease of premises to car
rental companies, who provide their services directly to the public.
But, the SCA said, that
is to elevate form above substance.
[19]
[32]
In dismissing this view, the SCA held,
“
The
general rule under s 217 of the Constitution is that all public
procurement must be effected in accordance with a system that
is
fair, equitable, transparent, competitive and cost-effective. The
only exception to that general rule is that envisaged by ss
217(2)
and (3). Section 217(2) allows organs of state to implement
preferential procurement policies, that is, policies that provide
for
categories of preference in the allocation of contracts and the
protection and advancement of people disadvantaged by unfair
discrimination. Express provision to permit this needed to be
included in the Constitution in order for public procurement to be
an
instrument of transformation and to prevent that from being
stultified by appeals to the guarantee of equality and
non-discrimination
in s 9 of the Constitution. The freedom conferred
on organs of state to implement preferential procurement policies is
however
circumscribed by s 217(3), which states that national
legislation must prescribe a framework within which those
preferential procurement
policies must be implemented. The clear
implication therefore is that preferential procurement policies may
only be implemented
within a framework prescribed by national
legislation. It follows that the only escape for ACSA from the reach
of s 217(1) is if
it is able to bring itself within ss (2) and (3).”
[33]
The Respondents chose not to answer the
averment that the process to insource the provision of the foodstuff
was unconstitutional
and invalid. One would not know if they had
hoped that there would be exceptions to the rule, applicable in their
favour. It is
however clear that from the above, there are no
exceptions applicable to the facts of this case.
[34]
In light of the clear meaning of
procurement above, there is therefore no dispute that a decision
taken by the Department to insource
the foodstuff was procurement as
meant in section 217 of the Constitution. It is also undisputed that
there has not been compliance
with these provisions as the
Respondents laboured under the impression that they had a discretion
not to do so. No matter how noble
the idea or the intentions,
compliance with the constitutional provisions is not discretional. It
follows therefore that the decision
to insource the acquisition of
foodstuff for boarding schools in the Mpumalanga Province stands to
be reviewed and set aside.
[35]
It may be necessary to make a pronouncement
on the application to declare the termination of the month to month
contract unlawful.
From the facts before me, it seems there is no
ongoing contract between the Applicant and the Respondents. What is
referred to
as a termination of contract, is not actually a
termination of a contract but a notification that a contract will not
be renewed.
The Applicant did not give enough reasons for the court
to hold that the Department was bound to renew the monthly contract
with
the Applicant. The Applicant seems to be of the view that if the
insourcing of services is unconstitutional and invalid, then it
follows automatically that the Department is bound to renew the month
to month contract with it. Even if this could be the position,
no
basis was advanced for the court to reach this conclusion.
[36]
At the hearing of this matter, the
Applicant’s counsel did not pursue with the application to hold
the Respondents in contempt
of court. In my view, this move was
erudite as no facts were supplied to support the suggestion that the
Respondents were in contempt
of court. One is rather tempted to agree
with the Respondents’ insinuations that the Applicant used the
assertions so as
to intimidate them into renewing the contract.
[37]
While the Applicant has been successful to
a large extent, I am of a view that a case has not been made out for
punitive cost order
to be awarded.
[38]
For the reasons above, I make the following
order:
[38.1] The Applicant’s
failure to comply with the forms and service provided for in the
Uniform Rules of the Court is condoned.
This matter is dealt with on
urgent basis as envisaged in Rule 6(12).
[38.2]
The First and/or Second Respondent’s decision on 14 June 2022
to “insource” the supply of food to boarding
schools
within the Mpumalanga Province is reviewed and set aside.
[38.3] The Respondents
are ordered to pay the costs of this application including the costs
of two counsel.
TV RATSHIBVUMO
JUDGE OF THE HIGH
COURT
MPUMALANGA DIVISION
MBOMBELA
FOR THE
APPLICANT ADV
MM RIP SC
ADV
JH GROENEWALD
INSTRUCTED
BY
BDK ATTORNEYS
C/O:
GERRIE GROENEWALD A
ATTORNEYS
INC
MBOMBELA
FOR THE
RESPONDENT ADV
C GOOSEN
INSTRUCTED
BY
ADENDORFF
THERON INC
MBOMBELA
DATE
HEARD 26
JULY 2022
JUDGMENT
DELIVERED 05
AUGUST 2022
[1]
See Exhibit FA2 on p. 39 of the paginated bundle
[2]
See para 5.3 & 5.7 of the founding affidavit on p.12-13 of the
paginated bundle.
[3]
See para 72 of the First Respondent’s answering affidavit on
p. 87.
[4]
See para 5.4 on p. 209 of the paginated bundle.
[5]
1955
(3) SA 547 (N)
at
553D.
[6]
1974
(4) SA 362
(T) at p. 368F-G
[7]
Titty's
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd (Supra)
at
p. 369A-B.
[8]
See para 3.1 of the founding affidavit on p. 9.
[9]
See para 5.5 and 5.6 of the founding affidavit on p. 6-7 of the
paginated bundle.
[10]
See section 2(a)(i), (b), (c), (d), (f)(i) & (i) of PAJA.
[11]
Imperial
Group Limited v Airports Company South Africa SOC Limited and Others
(2967/2018)
[2018] ZAGPJHC 411; [2018] 3 All SA 751 (GJ) (3 July 2018)
at para 58.
[12]
See para 93 & 94 of the First Respondent’s answering
affidavit on p. 91 of the paginated bundle.
[13]
See also para 97 of the First Respondent’s answering affidavit
on p. 91 of the paginated bundle.
[14]
See para 38 of the CFO’s confirmatory affidavit on p. 123 of
the paginated bundle.
[15]
See section 38(1)(a) of PFMA.
[16]
(1306/18)
[2020] ZASCA 2
;
[2020] 2 All SA 1
(SCA);
2020 (4) SA 17
(SCA) (31
January 2020)
[17]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[18]
United
Nations document A/66/17, annex I, which was adopted by the United
Nations Commission on International Trade Law on 1 July
2011.
[19]
Airports
Company South Africa SOC Limited and Others v Imperial Group Limited
(Supra)
at
para 21, 22 &63.