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[2021] ZASCA 90
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Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Ltd (216/2020) [2021] ZASCA 90; [2021] 3 All SA 791 (SCA); 2022 (5) SA 416 (SCA) (25 June 2021)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 216/2020
In the matter between:
SPECIAL
INVESTIGATING UNIT
FIRST APPELLANT
THE ACTING NATIONAL
COMMISSIONER
OF THE NATIONAL
DEPARTMENT OF
CORRECTIONAL SERVICES
REPRESENTING
THE DEPARTMENT OF
CORRECTIONAL
SERVICES FOR THE
REPUBLIC OF
SOUTH
AFRICA
SECOND
APPELLANT
and
ENGINEERED
SYSTEMS SOLUTIONS (PTY) LTD
RESPONDENT
Neutral
citation:
Special
Investigating Unit and Another v Engineered Systems Solutions (Pty)
Ltd
(Case no 216/2020)
[2021] ZASCA 90
(25 June 2021)
Coram:
NAVSA, SALDULKER and DLODLO JJA and ROGERS and
MABINDLA-BOQWANA AJJA
Heard:
3 May 2021
Delivered:
This judgment was handed down electronically by
circulation to the parties’ legal representatives by email,
publication on
the Supreme Court of Appeal website and release to
SAFLII. The date and time for hand-down is deemed to be 10h00 on 25
June 2021.
Summary:
Legality review – state organs as
co-applicants – validity of decisions to award tenders –
validity of pursuant
contracts – whether delay unreasonable –
whether delay should be overlooked.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Mokose J, sitting as a court of first
instance):
The
appeal is dismissed with costs, including costs occasioned by the
employment of two counsel.
JUDGMENT
Mabindla-Boqwana
AJA (Navsa, Saldulker and Dlodlo JJA and Rogers AJA concurring):
Introduction
[1]
This is an appeal against a decision of the
Gauteng Division of the High Court, Pretoria (the high court), in
terms of which it
dismissed a review application brought by the
Special Investigating Unit (the SIU) and the Acting Commissioner of
the National
Department of Correctional Services, representing the
Department of Correctional Services (the Department), against the
respondent,
Engineered Systems Solutions (Pty) Ltd (ESS). It concerns
the validity of the decisions taken by the Department to award
tenders
to ESS and the subsequent service level agreement (the SLA)
concluded between the Department and ESS. The appeal is with the
leave
of the high court.
[2]
In
the review application the SIU was the main applicant while the
Department supported the application as the second applicant.
The SIU
is an organ of state established by Proclamation No. R 118 of 2001
[1]
issued in terms of s 2(1)
(a)
of the Special Investigating Units and Special Tribunals Act 74 of
1996 (the SIU Act), read with s 2(2), to investigate certain
irregular and unlawful conduct by state institutions and their
employees, including serious maladministration in connection with
the
affairs of any state institution; improper or unlawful conduct by
employees of any state institution; unlawful appropriation
or
expenditure of public money or property; any unlawful, irregular or
unapproved acquisitive act, transaction, measure or practice
having a
bearing upon state property; and intentional or negligent loss of
public money or damage to public property (among others).
[3]
The
SIU has the power, inter alia, to ‘institute and conduct civil
proceedings in a Special Tribunal or any court of law for
– (i)
any relief to which the State institution concerned is entitled,
including the recovery of any damages or losses and
the prevention of
potential damages or losses which may be suffered by such a State
institution; (ii) any relief relevant to any
investigation; or (iii)
any relief relevant to the interests of a Special Investigating
Unit’.
[2]
The SIU also
‘may institute and conduct civil proceedings in its own name or
on behalf of a State institution in a Special
Tribunal or any court
of law’.
[3]
[4]
On
15 April 2016, the President of the Republic of South Africa issued a
proclamation
[4]
referring for
investigation to the SIU, certain allegations in respect of the
affairs of the Department, relating to irregularities
in the
procurement of an Electronic Monitoring System (EMS) and payments
relating thereto. The SIU alleged that its investigation
revealed a
number of irregularities in the procurement processes relating to
tenders awarded to ESS by the Department in relation
to the EMS. That
is what led to the review application.
Background
[5]
During 2011, a decision was taken by the
Department to introduce, in phases, a system (EMS) which would be
used to monitor offenders
who had been released on parole and/or
remand detainees who had been placed under supervision. The system or
project was initiated
to immediately deal with the result of a
judgment of the Constitutional Court in terms of which inmates who
had been sentenced
to death before 1 March 1994 became eligible for
parole. The scope was, however, later extended beyond that immediate
need. The
project would also promote public safety by imposing
restrictions on the movement of offenders and serve as a deterrent
against
other non-compliant behaviour through various technologies.
[6]
A procurement project in respect of the
introduction of the EMS got underway on 8 June 2011 with a proposal
to nominate members
to serve on the Bid Specification Committee (BSC)
as well as the Bid Evaluation Committee and Project Steering
Committee. The nominees
for the BSC held two meetings, on 7 June 2011
and 10 June 2011, prior to their formal appointment by the National
Commissioner
of Correctional Services (National Commissioner) on 23
June 2011. The manner in which these appointments were done as well
as the
holding of the two meetings were identified as an irregularity
by the SIU. Before us that issue was not persisted in.
[7]
On 26 August 2011, the Department
advertised a tender for the ‘[s]upply, delivery, installation,
commissioning, training and
maintenance of a National Pilot Project
for an electronic monitoring solution for the Department of
Correctional Services, over
a one-year period’ (the pilot
tender). If the pilot project proved to be a success, a full-blown
final project would be implemented.
Bids were received from various
entities, including ESS.
[8]
In December 2011, the pilot tender was
awarded to ESS followed by a contract concluded between the
Department and ESS at a cost
of R6 510 375. The pilot project was to
endure from 1 April 2012 to 31 March 2013, but the contract was
extended three times. With
the final extension, the contract would
expire on 30 June 2014. This, according to the appellants,
was irregular and
legally impermissible, as the Department could not
extend a contract that had expired. These extensions, so the
appellants contended,
increased the contract price by an additional
R8 167 894 (125% of the original contract price), yielding
a total price,
inclusive of extensions, of R14 678 269 (ie
225% of the initial contract price).
[9]
During the pilot stage, ESS designed the
EMS in consultation with the Department. This involved a released
offender being fitted
with a tamperproof ankle bracelet. The movement
and location of that offender could then be monitored electronically.
ESS contracted,
among others, 3M South Africa (Pty) Ltd (3M) and
Geo-Satis SA Technology (Geosatis) to provide it with the bracelets.
[10]
In February 2014, the Department advertised
a further tender, after a previous one was aborted, for the ‘supply
delivery,
installation, commissioning, training and maintenance of a
National Electronic Monitoring Solution by way of lease for a period
of five years for the Department of Correctional Services’ (the
final tender), which was awarded to ESS in April 2014. On
21 May
2014, a Service Level Agreement (the SLA) was concluded between the
Department and ESS in respect of the final project to
the value of
R301 611 772.
[11]
In August 2016, the Department stopped
paying ESS for services rendered, claiming breach of contract, while
it nevertheless expected
ESS to continue to render the services. This
was followed by cancellation of the SLA on 15 March 2017 by the
Department. Reasons
advanced for the cancellation were stated in a
letter dated 13 March 2017, written to ESS by the Department’s
attorneys.
In the letter the attorneys alleged that ESS had
overcharged the Department by substantially underperforming and had
breached its
contractual obligations.
[12]
The
Department further relied on the findings of the SIU that the
Department could not embark on a tender process or conclude an
SLA
when goods and services procured constituted ‘information
technology’ as defined in s 1 of the State Information
Technology Agency Act 88 of 1998 (the SITA Act)
[5]
without the involvement of the State Information Technology Agency
(the IT Agency). (I shall call this the SITA issue.)
[13]
The
letter further highlighted that the goods and services procured in
the tender process constituted ‘security equipment’
and
‘security services’ defined in s 1 of the Private
Security Industry Regulation Act 56 of 2001 (the PSIR Act).
[6]
For that reason, persons and/or entities who rendered such services
ought to have been registered with the Private Security Industry
Regulatory Authority (the PS Authority) established in terms of the
PSIR Act. It was alleged that the subcontractors and personnel
used
by ESS to render the services were not registered as required by the
PSIR Act, and that this was a criminal offence in terms
of s 38 of
the PSIR Act. (I shall call this the PS issue.)
[14]
Furthermore, the Department’s
attorneys alleged that ESS had made misrepresentations in its bid
documents concerning security
clearance(s) by the State Security
Agency, as neither it nor its directors, personnel and subcontractors
had security clearance
up to the level of ‘Confidential’,
as required in terms of the SLA. This issue was not pressed in the
hearing on appeal,
rightly so. ESS alleged that Mr Francis Matabane,
who was a project manager for the Department, informed ESS’
legal representatives
that the inclusion of the requirement that ESS
and its personnel must be cleared up to the purported level of
confidential was
an oversight on his part during the drafting of the
SLA, having made use of an old service level agreement as a template.
Despite
its inclusion, the parties were of the common understanding
that only clearance in terms of the PSIR Act and criminal checks at
the SAPS were required. This allegation was also not addressed in
reply by the appellants, but simply noted. There would be no
reason
to reject it on the papers, similar to many other allegations not
addressed by the Department in reply.
[15]
Finally, it was alleged that ESS had, as
part of its tender, proposed the use of Ekasi IT Solutions (Pty) Ltd
(Ekasi), a 100% black-owned
company. Ekasi’s profile,
qualifications, expertise and previous work experience featured
significantly in its bid, when
it knew that it was not intending to
utilise Ekasi. This, it was alleged, constituted a misrepresentation
of the facts to the Department.
(I shall call this the fronting
issue.) Although in their review application the appellants alleged a
number of other irregularities
as well, at the hearing of the appeal
counsel for the appellants said that he would be relying only on the
SITA issue, the PS issue
and the fronting issue.
[16]
The Department gave three months’
cancellation notice, which was from 1 April 2017 to 30 June
2017, during which period
ESS was expected to hand over all goods and
services to the Department in terms of the Exit Management Plan as
contained in the
SLA. According to the appellants, ESS refused to
co-operate with the hand-over process, and to avoid risk to public
safety and
security that could result from the sudden discontinuation
of the EMS from 1 July 2017, the SIU held discussions with 3M and
Geosatis
to provide security bracelets for the EMS during the
cancellation period. These discussions failed to bear any fruit.
After the
expiry of the three months’ cancellation period, and
on 6 July 2017, the Department took a decision to de-tag the
offenders
that were being monitored and continued to monitor the
affected offenders manually. It maintained that the de-tagging posed
no
risk to public safety.
[17]
The cancellation of the SLA was met with an
urgent application, launched by ESS in the high court on 31 March
2017, wherein ESS
sought a declaratory order that the SLA was valid
and enforceable. It also sought payment of outstanding invoices for
goods it
had supplied and services that it had rendered. The parties
agreed to have the dispute referred to arbitration before a retired
judge. This agreement was made an order of court on 20 April 2017. In
it, the appellants reserved their right ‘to challenge
the
validity of the administrative decision underpinning the agreement
and/or the agreement itself in a court of law in due course’.
[18]
The arbitration served before retired Judge
W J van der Merwe. During the arbitration hearing, the Department,
through its attorney,
admitted liability for services rendered by ESS
and made known its intention to pay the invoices and even offered to
settle the
matter. The Department however sought a postponement in
order to verify the invoices. The arbitrator refused a postponement,
and
the matter proceeded. On 29 November 2017, the arbitrator ruled
in favour of ESS and issued two arbitration awards for payment in
the
amounts of R83 859 822 and R27 934 931 with interest at 5% above the
prime lending rate. The arbitration awards were made orders
of the
high court by Senyatsi AJ on 17 May 2018 and the Minister, who had
opposed the application, was ordered to pay costs on
the scale as
between attorney and client. On 30 April 2018 and 23 May 2018, the
Department instituted two separate review applications
for the
setting aside of the arbitration awards. We were told that these
applications are still pending.
[19]
The review application, which is the
subject of this appeal, was lodged on 28 March 2018. In the review
application, the appellants
sought condonation for the delay in
bringing the application in terms of the common law, to the extent
necessary, alternatively
an extension of the period of 180 days in
terms of the Promotion of Administrative Justice Act 3 of 2000
(PAJA). They further sought
orders to review and set aside the
‘decisions taken by various officials in the employ of [the
Department] . . . underpinning:
‘
2.1
the award of a tender to the Respondent, Engineered Systems Solutions
(Pty) Ltd (“ESS”)
with Company Registration No.
2004/024978/07 for “a pilot project” with tender number
HK 07/2011 (“the
Pilot tender”) which resulted in
the appointment of ESS for a pilot project for the “supply,
delivery, installation,
commissioning, training and maintenance of a
national pilot project for 12 months for an electronic monitoring
solution for the
Department [of] Correctional Services” (“the
Pilot project”). The Department issued Purchase Orders in the
aggregate
value of R 14 678 269.50 in respect of the Pilot project;
and
2.2
the award of a tender to ESS under bid number HO 01/2014 (“the
Final tender”),
which resulted in the appointment of ESS for a
project to “supply, deliver, install, train, commission and
maintain a National
Electronic Monitoring Solution by way of lease
for the period of five (5) years for the Department of Correctional
Services”
(“the Final project”). The Department
issued Purchase Orders in the aggregate value of R 151 116 144.05 in
respect
of the Final project.’
[20]
The appellants also sought the review and
setting aside of the SLA(s) and any other contracts entered into
pursuant to the pilot
and final tenders and/or projects; and orders
declaring that the decisions to award the tenders, and the respective
SLA(s) and
other contracts, were unconstitutional, unlawful, invalid
and void
ab initio.
A
relief of unjust enrichment was sought in the alternative.
[21]
The high court dismissed the application
for condonation on the basis that the delay was unreasonable. It did
not consider whether,
despite the finding of unreasonableness, the
delay should nonetheless be overlooked. The high court erred in this
respect if one
has regard to the principles established in various
judgments, to which I shall return.
[22]
Before I deal with the main issues in the
appeal, it is convenient to dispose of some preliminary issues. The
first issue is the
contention by ESS that the review application is
fatally defective, because the relief sought by the appellants was in
conflict
with Senyatsi AJ’s order, which made the arbitration
awards orders of court. There is no merit in this challenge. In the
court order dated 20 April 2017, the SIU and the Department clearly
reserved their rights to challenge the validity of the
‘administrative
decision underpinning the agreement and/or the
agreement itself in a court of law in due course’.
[23]
The second contention by ESS is that the
decisions sought to be reviewed were not properly identified. That
too has no merit and
can be disposed of summarily. The validity of
the pilot and the final tenders to ESS as well as the conclusion of
the SLA and any
other contracts between the Department and ESS
pursuant to the award of the tenders are in dispute and although the
founding affidavit
is unnecessarily long the bases for the review set
out above were provided.
PAJA and Legality
[24]
The
next question is whether PAJA finds application in this case.
Post-
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
,
[7]
it is now settled that an organ of state cannot apply for the review
of its own decision under PAJA. Counsel for the appellants
argued
that insofar as the SIU was concerned, PAJA would be applicable, as
the SIU was not reviewing its own decision but that
of another organ
of state. He contended that, although the Constitutional Court in
Gijima
stated that an organ of state may not avail itself of PAJA, it went
on to state, obiter, that this did not mean one organ of state
may
not use PAJA against another. In this regard, the Constitutional
Court in
Gijima
said
‘[w]e must emphasise that the issue has nothing to do with a
scenario where an organ of state
that
is in a position akin to that of a private person
(natural or juristic) may be seeking to review the decision of
another organ of state’.
[8]
(My emphasis.)
[25]
Although
the scenario seemed to have been left open by the Constitutional
Court in
Gijima
,
it seems doubtful that the SIU would be regarded as being
in
a position akin to that of a private person.
The
Constitutional Court in
Gijima
went on to say ‘it seems inconsonant that the State can be both
the beneficiary of the rights and the bearer of the corresponding
obligation that is intended to give effect to the rights. This must,
indeed, be an indication that only private persons enjoy rights
under
section 33’,
[9]
and by
extension under PAJA. In regard to the delay question, it would, in
any event, be in favour of the appellants to proceed
by way of
legality than PAJA.
Assessment of delay in
legality reviews
[26]
The
principles applicable in assessment of delays in legality reviews are
succinctly summarised in the recent decision of this Court,
Govan
Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd.
[10]
I recount them briefly.
[27]
The
key difference between PAJA and reviews brought under the legality
principle is the 180-day limit which is applicable in PAJA
as a
period in which to bring a review of an administrative action. In
legality review this specified period plays no role in the
assessment
of the delay.
[11]
The test in
legality review is whether the delay is unreasonable.
[12]
In both PAJA and legality reviews ‘the proverbial clock starts
running from the date that the applicant became aware or reasonably
ought to have become aware of the action taken’.
[13]
[28]
The
Constitutional Court in
Buffalo
City Metropolitan Municipality v ASLA Construction (Pty) Ltd
[14]
endorsed
the test followed by this Court in
Gqwetha
,
[15]
and later approved by the Constitutional Court in
Khumalo
,
[16]
that in assessing delay the first question to be determined is the
reasonableness of the delay. If the delay is found to be
unreasonable,
the next question is whether it should nevertheless be
overlooked in the interests of justice.
[17]
[29]
The
reasonableness of the delay is assessed by considering the
explanation for the delay, which must cover the entire period of
the
delay. ‘Where the delay can be explained and justified, then it
is reasonable, and the merits of the review can be considered
. . .
But . . . where there is no explanation for the delay, the delay will
necessarily be unreasonable’.
[18]
[30]
Where
the delay is found to be unreasonable, there must be a basis for a
court to exercise its broad discretion to overlook it.
This must be
gathered from the available facts.
[19]
In this evaluation a number of factors must be taken into account.
The first ‘is potential prejudice to affected parties
as well
as the possible consequences of setting aside the impugned decision.
The potential prejudice to affected parties and the
consequences of
declaring conduct unlawful may in certain circumstances be
ameliorated by [the Court]’s power to grant a
just and
equitable remedy and this ought to be taken into account’.
[20]
The second factor to be considered is the nature of the impugned
decision. This entails ‘a consideration of the merits of
the
legal challenge against that decision’.
[21]
Navsa JA in
South
African National Roads Agency Ltd v City of Cape Town
[22]
highlighted the point that the merits of the impugned decision are a
critical factor in determining whether it is in the interests
of
justice to condone the delay. That ‘would have to include a
consideration of whether the non-compliance with statutory
prescripts
was egregious’.
[23]
A
third factor to be considered is the conduct of an applicant. In
Member
of the Executive Council for Health, Eastern Cape and Another v
Kirland Investments (Pty) Limited t/a Eye & Lazer Institute
,
[24]
Cameron J stated that:
‘
[T]here
is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with
rights. Government is not an indigent or bewildered litigant, adrift
on a sea of litigious uncertainty, to whom the courts
must extend a
procedure-circumventing lifeline. It is the Constitution’s
primary agent. It must do right, and it must do
it properly.’
[31]
Finally,
even if there is no basis to overlook the unreasonable delay, a
further principle arising from
Gijima
is
that the court is obliged by virtue of the provisions of s 172(1)
(a)
of the Constitution to declare invalid any law or conduct that is
inconsistent with the Constitution, to the extent of its
invalidity.
[25]
The
Constitutional Court in
ASLA
held
that this applies when the unlawfulness is clear and undisputed.
[26]
It further went on to state that the
Gijima
principle should ‘be interpreted narrowly and restrictively so
that the valuable rationale behind the rules of delay are
not
undermined’.
[27]
At the
same time it should not be ignored, but applied where there is
indisputable and clear inconsistency with the Constitution.
I now
turn to the facts of this case.
Was the delay
unreasonable?
[32]
The decision to award the pilot tender and
the conclusion of the related contract took place some seven years
before the review
application was brought, whilst the decision to
award the final tender and conclusion of the SLA was approximately
four years before
the review application was launched. One glaring
fact in this case is that while the review application was brought by
the SIU
and the Department as co-applicants, it deals almost
exclusively with the SIU’s involvement and its acquired
knowledge of
the facts. The organ of state whose decision is sought
to be reviewed and set aside took a back seat in the application.
[33]
As stated in the judgments I have referred
to, the applicants were obliged to give a full account of the facts
for the entire period
of delay. In this case it is from 2011, when
the first tender was awarded, to 2018, when the review application
was launched. According
to the SIU, the proverbial clock, insofar as
it was concerned, started in September 2016, when it gained
sufficient knowledge of
the irregularities. In as far as the
Department is concerned, it seems to be claimed that the proverbial
clock started ticking
in January 2017, when it was advised by the SIU
to cancel the agreement with the ESS.
[34]
No account is given by the Department as to
what occurred before 15 April 2016, when the SIU received its mandate
to investigate
its affairs. In fact, the deponent to the founding
affidavit, Mr Cornelius du Toit (an SIU investigator) categorically
stated that
he would only deal with the supervening events which
occurred after 15 April 2016.
[35]
The supporting affidavit deposed to by Mr
Jephtha Mkabela, the Acting National Commissioner of the Department
and Head of Department,
is unhelpful. In it he simply ‘make[s]
common cause with the SIU in every respect. Since this Application is
mainly based
on investigation findings made by the SIU, as set out in
the Founding Affidavit of the SIU (as read with its annexures), and
in
order to avoid unnecessary duplication, I will not repeat, or deal
with the case made out by the SIU as regards to the irregularities
that occurred’. The Minister’s affidavit also did not add
any facts. It simply confirmed the authority of Mr Mkabela
to
institute the review application and depose to his affidavit.
[36]
This
approach to adducing crucial evidence was criticised by this Court in
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality
,
[28]
where the Court said:
‘
[T]he
Municipality adopted the sloppy method of adducing evidence by way of
a hearsay allegation made by Mr Mashitisho supported
by a so-called
“confirmatory affidavit” by Mr Van Wyk, who stated no
more than that he had read the affidavit of Mr
Mashitisho and
“confirmed the contents thereof in so far as it relates to me
and any of activities”. This might be
an acceptable way of
placing non-contentious or formal evidence before court, but where,
as here, the evidence of a particular
witness is crucial, a court is
entitled to expect the actual witness who can depose to the events in
question to do so under oath.
Without doing so, a hearsay statement
supported merely by a confirmatory affidavit, in many instances,
loses cogency.’
[37]
It was crucial to have witnesses within the
Department to depose to the events that occurred before and after the
SIU’s involvement
in its affairs. Apart for there being
insufficient allegations in the founding affidavit pertaining to the
decisions by the Department
to award tenders to ESS, it is not clear
whether Mr Mkabela and the Minister had personal knowledge of any of
the facts in the
founding affidavit attributed to the Department. It
appears that Mr Mkabela was only appointed as Acting National
Commissioner
in January 2018 after the removal of Mr James
Smallberger. No one in the Department deposed to oversight measures,
if any, in relation
to the procurement process. The court was not
told what was done by the Department at material times to monitor
compliance with
regulatory legislation. Indeed, the court was not
told that the Department commenced the review process as soon as
possible. The
compelling conclusion, having regard to the timeline,
is that such an assertion was not possible.
[38]
The Department had a duty to explain its
actions and those of its officials. Repeated allegations were made in
the founding affidavit
that ‘at all relevant times, the
Department was not aware and did not appreciate that the Contracts
relevant to the Pilot
tender were unconstitutional, unlawful, invalid
and void
ab initio’
.
These are facile and unhelpful and were made in parts of the founding
affidavit dealing with the alternative and conditional cause
of
action of unjust enrichment.
[39]
As
was stated in
ASLA
,
organs of state ‘ought to become aware much sooner . . . (even
prior to, and without the benefit of an independent investigation),
that its employees awarded the . . . contract without going through a
procurement process. [They] must have effective structures
and
mechanisms in place to ensure proper oversight for its service
delivery projects. This is one of its core responsibilities.
It must
detect and prevent the abuse of taxpayer’s monies. A lack of
effective oversight leads to dysfunctionality within
[organs of
state] by creating loopholes for fraud and corruption’.
[29]
[40]
Mr du Toit stated in the founding affidavit
that where he relied on hearsay evidence ‘the necessary
application will be made
that same may be allowed’. Such an
application was not made. To the extent that Mr du Toit alleged
anything of which he or
deponents to confirmatory affidavits from the
Department had no personal knowledge, it remained inadmissible
hearsay evidence.
We do not even know that the responsible officials
within the Department even agree that the EMS projects were irregular
in the
respects identified by the SIU.
[41]
The explanation given by the appellants as
to what transpired from April 2016 is also unsatisfactory. The SIU
alleged that after
receiving its mandate to investigate the
Department on 15 April 2016, it started with its investigations in
May 2016. Its investigators,
so it was alleged, had to wade through
tens of thousands of documents, which took them until August 2016. Mr
du Toit became aware
of Mr Nkosi, the Chief Executive Officer (CEO)
of Ekasi, in September 2016, whom he requested to comment on various
documents.
According to the SIU, this is when the proverbial clock
started ticking, as it then gained sufficient knowledge about the
reasons
for the awarding of the tenders.
[42]
The SIU had everything it needed to have to
launch the review application by early October 2016. By this time,
they had consulted
with Mr Nkosi of Ekasi and received his affidavit
and no new irregularities were discovered after that period. The SIU
instructed
the State Attorney to brief counsel during December 2016.
At the same time, the Department had briefed its own attorney and
counsel
to provide the Department with advice concerning possible
breaches of contract and poor service delivery by ESS. Counsel was
eventually
briefed by the SIU on 30 January 2017. This is
when the SIU advised the Department to cancel the SLA with ESS.
[43]
The first consultation with counsel took
place on 7 February 2017. The focus shifted from compiling documents
in preparation for
the review application to cancellation of the SLA
and the court processes which followed. The SIU also moved its
attention to the
hand-over process of the EMS from ESS to the
Department. The SIU, despite being a non-party to the contract,
nevertheless negotiated
with the subcontractors of ESS to continue
providing services when the main contract had been cancelled, when on
their own version
the subcontractors did not, in terms of prevailing
legislation, qualify to render the services.
[44]
There is a deafening silence about the
further delay until 26 September 2017, when counsel apparently
completed the first draft
of the founding affidavit, which was sent
to Mr Walser of the SIU to settle. He received it on 5 October 2017.
A further delay
in finalising the review application was attributed
to Mr Walser’s heavy workload. He finally interacted with
counsel in
December 2017. Another delay was allegedly caused by the
change of Acting National Commissioner, whom the SIU was only able to
meet on 18 January 2018 to brief him about the application and for
him to be identified as the second applicant. No explanation
was
tendered of what had occurred between the period of 18 January 2018
to 28 March 2018, when the review application was issued,
and to 5
April 2018, when it was served on ESS.
[45]
Although the appellants contended that they
did not sit idly by, allowing the clock to tick away, the explanation
they gave did
not account for the full period. It does not withstand
scrutiny. The appellants did not act promptly in bringing the review
application.
On the contrary, they dithered and focused instead,
unreasonably, on cancellation of the agreement and on other court and
arbitration
processes, which the SIU admitted it was not party to
until it intervened at a later stage. The explanation consists of
unaccounted
periods and the delay is clearly unreasonable.
Should the delay be
overlooked?
[46]
Having found the delay to be unreasonable,
the next question is whether it should be overlooked. I will first
consider the nature
of the impugned decision as one of the components
to be considered in this leg of the assessment.
[47]
A number of irregularities were raised in
the founding affidavit, but as mentioned earlier, counsel for the
appellants informed
us that he was only relying on three: the SITA
issue, the PS issue and the fronting issue.
The SITA issue
[48]
The
appellants contended that the procurement process was unlawful and
invalid, because the pilot and final projects were concluded
without
the intervention and referral to the IT Agency as required by the
SITA Act, since the projects envisaged by the Department
had to do
with ‘information technology’. ‘Information
technology’ is defined in the SITA Act as ‘all
aspects of
technology which are used to manage and support the efficient
gathering, processing, storing and dissemination of information
as a
strategic resource’.
[30]
[49]
In terms of s 7(1), to achieve its objects,
the IT Agency –
‘
(a)
must, on behalf of a department, and may, on behalf of a public body,
which so requests in terms
of
subsection
(4)
or
(5)
-
(i)
provide or maintain a private
telecommunication network or a value-added network service in
accordance with the Telecommunications
Act, 1996 (Act No. 103 of
1996);
(ii)
provide or maintain transversal information
systems; and
(iii)
provide data-processing or associated
services for transversal information systems; and
(b)
may, on behalf of a department or public body,
which so requests in terms of
subsection
(4)
or
(5)
,
provide –
(i)
training in information technology or information systems;
(ii)
application software development;
(iii)
maintenance services for information technology software or
infrastructure;
(iv)
data-processing or associated services for
departmentally specific information technology applications or
systems;
(v)
technical, functional or business advice or
support, or research, regarding information technology; and
(vi)
management services for information
technology or information systems.’
[50]
Section 7(3) provides:
‘
Despite
any other law to the contrary, every department must, subject to
subsection
(4)
, procure all information
technology goods or services through the Agency.’
And
in terms of s 7(4), a department that wishes to acquire a service
contemplated in subsections (1)
(a)
‘must (i) acquire that service from the Agency in accordance
with business and service level agreements concluded in terms
of
section 20; or (ii) procure that service through the Agency in terms
of
subsection
(3)
if the Agency indicates in
writing that it is unable to provide the service itself’.
[51]
If services are contemplated in terms of
section 7(1)
(b)
,
a department must, in terms of s 7(4)
(b)
,
either acquire that service from the IT Agency in accordance with
business and service level agreements concluded in terms of
section
20 or procure that service through the IT Agency in terms of
subsection
(3)
.
[52]
The appellants also referred to regulation
16A6.3
(e)
of the Treasury Regulations, amongst others, which states that the
accounting officer or accounting authority must ensure that
contracts
relating to information technology are prepared in accordance with
the SITA Act and its Regulations.
[53]
In order for the SITA Act to find
application in this case, the appellants had to show that the
services provided by ESS to the
Department fell within the services
listed in s 7(1) of that Act. ESS alleged in its answering affidavit
that it was given assurances
by the Department that the SITA Act did
not apply, because the Department did not regard the services to be
rendered by ESS as
information technology services. ESS presumed this
to be so, because the services it provided to the Department
primarily included
the provision of hardware such as ankle bracelets
to be worn by parolees. The composite does not appear to fall within
the services
contemplated within s 7. Indeed, the Department did not,
prior to the review application consider it to be so. In its opposing
papers, ESS alleged that it would have been inconceivable and
impracticable to separate a tender for the bracelets from the
‘peripheral
information technology services’. This
received no substantive answer from the SIU or from the Department.
[54]
ESS made further allegations in its
answering affidavit that:
‘
Not
only was ESS given repeated assurances that this is not an IT
project, but ESS was also informed that [the IT Agency’s]
participation in the Rollout Project was limited to providing the IT
Hosting environment. ESS would deploy the Electronic Monitoring
Software. IT was only an enabler to the Electronic Monitoring
program, as per the tender document issued by the DCS.
Despite [the IT
Agency]/DCS being obliged to provide the Hosting Environment for
purposes of deploying the monitoring software,
it failed to do so and
as a result and in order to ensure proper service delivery, ESS took
it upon themselves (at the request
of the DCS) to provide the
complete IT environment to enable delivery of the EM program, until
such time as [the IT Agency]/DCS
complied with their obligations.
Not
only were ESS given repeated assurances that this was not an IT
project and ESS need not be concerned with [the IT Agency],
it should
also be remembered that this aspect falls within the specific and
exclusive knowledge of DCS.’
[55]
There is no evidence to gainsay what has
been alleged by ESS. Extraordinarily, the Department failed to
provide any explanation
in the founding affidavit in relation to its
alleged non-compliance with the SITA Act as a co-contractor or
attempt to deal with
ESS’ allegations in reply. Instead, they
noted and reserved them for argument. ESS’ version is
accordingly not disputed
on this issue. Moreover, I am unpersuaded
that the services provided by ESS are covered by the provisions of s
7(1).
[56]
Counsel for the appellants took us to the
tender document prepared by the Department, which referred to
‘System/Data Requirements’
and ‘Software
Requirements’, and to the proposal by ESS to the Department
dated 10 March 2014 listing the business
and system requirements, in
order to demonstrate that the functions listed therein fell within
the provision of services contemplated
in the SITA Act.
[57]
The issue of non-compliance with the
provisions of the SITA Act is a question of interpretation. That
interpretation cannot be done
in a vacuum, it must have a factual
basis. The mentioning of ‘software’ in a document is not
sufficient to come to
a conclusion that the provisions of the SITA
Act were involved. Whether software services played less of a role
than hardware required
an understanding of the underlying facts
pertaining to the function of the ankle devices in relation to the
technology employed.
It would have helped not only to have the
Department’s view on this issue but to also have someone with
expertise, possibly
from the IT Agency, to give insight as to how EMS
would fit into the services listed in the SITA Act. The SIU simply
listed the
provisions of the SITA Act and arrived at the conclusion
that there was a breach without interrogating the difficult questions
raised by ESS. I am not satisfied that there are sufficient facts
available to invalidate the contract on the basis contended for.
The PS issue
[58]
The challenge under this heading is that
the goods required for the EMS’ pilot project were deemed to
constitute ‘security
equipment’ and the monitoring and
service of such equipment were deemed to constitute ‘security
services’ as
defined in the PSIR Act. ESS, including its
subcontractors and their respective staff, were not registered to
render the security
services at the time the ESS submitted its bid
response and when they purported to render services to the
Department.
[59]
Section
20(1)
(a)
of the PSIR Act prohibits the rendering of services without a person
registering as a security service provider in terms of that
Act.
Further, in terms of s 20(2) a security business
[31]
may only be registered as a service provider if all persons
performing executive or managing functions in respect of such
security
business are registered as security service providers.
[32]
In the case of a security business which is a company, every director
must be registered as a security service provider. Any contract
which
is inconsistent with these provisions is invalid (s 20(3)).
[60]
It is common cause that at all material
times ESS was registered as a security business. Two individuals, Mr
M Ferreira and Mr P
Reddy, who were performing executive and
management functions, were registered as security service providers
at the commencement
of the rollout project. No specific allegations
were made as to how services provided by subcontractors, consortium
partners and
joint ventures were linked to the PSIR Act. ESS alleged
that individual subcontractors did not render security services as
contemplated
in the PSIR Act. These allegations were simply noted in
reply by the appellants.
[61]
The appellants listed a number of
individuals whom it was alleged were employed by ESS to perform
security service functions without
being registered. In response
thereto, ESS alleged that at all material times, the security
officers it employed were registered
with the PS Authority. They were
employed at different times and accordingly their registration
periods would differ. Additionally,
not all the persons mentioned in
the spreadsheet attached to the founding affidavit were employed by
ESS. Of the eight that were
employed during the pilot project, seven
were registered between 1999 and 2010 and one was no longer working
at ESS and therefore
ESS could not obtain his certificate from the PS
Authority.
[62]
As to the other employees against whom
non-compliance was alleged in the founding affidavit, they either
joined ESS after the pilot
tender was awarded or were registered
before joining ESS. In other instances, the registration process was
delayed. The appellants
did not deal with these matters in reply,
they simply noted them as matters for argument. At the end, ESS
alleged substantial compliance
with the PSIR Act.
[63]
Referring to ESS’ proposal dated 10
March 2014, counsel for the appellants submitted that ESS
misrepresented that it had complied
with the PSIR Act when it stated
the following:
‘
Vetting
of personnel will take place, ensuring security clearance; currently
ESS under “Good Industry Practice” ensures
that the
company and required staff are PSIRA Registered. All the current EM
Staff is PSIRA vetted/registered.’
[64]
The PSIR Act prohibits the rendering of
security services by a person who is not registered at the time of
providing those services.
A person who is not registered before they
render a service is not in breach. Therefore, a bidder whose
personnel is not registered
at the time of bidding cannot be
infringing the provisions in the PSIR Act. Same should be the case
when the bidder is awarded
a tender but has not yet commenced with
work and does not yet have all its employees registered. It goes
without saying that when
the successful tenderer actually provides
the services, they are then obliged to comply. It would make no sense
to employ staff
and get them accredited in anticipation of a tender
which may not be awarded.
[65]
There
appears to have been no misrepresentation at the time of bidding by
ESS. For there to have been misrepresentation the tender
documents
would have had to require bidders to state that they were in
compliance with the PSIR Act at the time of the bidding.
Firstly, the
statement in ESS’ proposal, that counsel for the appellants
referred to, indicates that ‘[v]etting of
personnel will take
place’. An honest statement made about what is to occur in
future cannot amount to actionable misrepresentation,
even if the
person who made the statement thereafter fails to do what was needed
to bring about the state of affairs in question.
[33]
[66]
Secondly, the Department could not have
been induced to contract with ESS based on the statement ‘all
current ESS staff is
PSIRA vetted/registered’, as this was not
a requirement in the tender document. The Department has in any event
not alleged
that it was in fact so induced. While the appellants
sought to provide facts relating to non-compliance with the PSIR Act
for the
duration of the projects, no focused specific allegation was
made that as at 10 March 2014, some employees were not registered,
contrary to the statement made by ESS in its proposal.
[67]
To the extent that there be any breach of
the provisions of the statute, the PSIR Act does not invalidate the
entire contract. In
terms of s 20(3) of the PSIR Act ‘[a]ny
contract, whether concluded before or after commencement of this Act,
which is inconsistent
with a provision contained in subsections (1)
[or (2)] . . . is invalid to the extent to which it is so
inconsistent’. As
a result, the award of the contracts to ESS
are invalid only to the extent that they are inconsistent with the
PSIR Act. Notwithstanding,
the appellants have not pointed to any
tender specifications or provisions of the contracts which are in
conflict with the PSIR
Act.
Fronting
[68]
The contention in this regard is that ESS
in its offer for a final bid, contained in the letter dated 10 March
2014, made fraudulent
misrepresentations that it had partnered with
and intended to use the services of a 100% black-owned subcontractor,
Ekasi, which
it did not do. The alleged misrepresentations were as
follows:
‘
[ESS]
has partnered with Ekasi IT Solutions, a black owned and managed
skills training software and IT services company that takes
IT
strategy into thoroughly practical implementation. Over the last six
years Ekasi has designed and implemented superior IT based
solutions
for customers.
. . .
[ESS]
together with Ekasi IT Solutions will make use of predominantly
previously disadvantaged individuals (PDI’s) to perform
various
manpower functions, eg the Control Room Monitoring functions. This
project will create approximately 100 new jobs.’
[69]
It was alleged by the appellants that Mr
Nkosi, who was the sole director and CEO of Ekasi, confirmed that he
was approached by
TMM Holdings (Pty) Ltd (TMM), ESS’ holding
company, to be a partner or subcontractor in a bid proposal that ESS
intended
to make in respect of the final tender. Mr Nkosi however
never heard anything from TMM or ESS after that time and no tender
documents
were ever given to him to complete or sign in support of
the tender. When he later learnt that the final tender had been
awarded,
he made inquiries to ESS and was informed that ESS did not
make use of Ekasi as part of its bid proposal, which according to the
appellants was misleading.
[70]
Mr Nkosi deposed to an affidavit in support
of the review application, wherein he stated that he handed ‘all
the relevant
tender documents needed for the compilation of the
tender documents to ESS official Mr Monde Ncapai and . . . did also
sign documents
that [were] needed for the tender’. The
appellants contended that this statement was incorrect, as it was
inconsistent with
the rest of Mr Nkosi’s affidavit, where he
denied that the initials and signature appearing in tender documents
that were
identified to him were his. It was contended that he denied
having completed these documents.
[71]
Refuting these allegations ESS alleged that
before the rollout tender was due for submission, Mr Nkosi was
provided with the relevant
documents, which he signed. These were
collected at his residence in Soweto by Mr Ncapai. Mr Nkosi also
submitted Ekasi’s
tax clearance certificates and a certified
copy of his identity document (ID). The appellants denied this but
offered no alternative
version. Mr Nkosi was not asked to confirm or
deny allegations made in the answering affidavit, in this regard. Mr
Ncapai’s
version in fact seems to accord with Mr Nkosi’s
assertion that he signed all the documents. Whether he signed all or
some
is of no great moment. If he did not sign any documents relating
to the tender why would he positively state that he did?
[72]
According to Mr Ncapai, the next day, after
Mr Nkosi had signed documents, there were additional tender documents
requiring his
signature. Mr Ncapai called Mr Nkosi to request him to
attend at ESS’s offices in order to sign these documents. Mr
Nkosi
indicated that he would not be able to attend ESS’
offices. In view of the urgency required to submit the documents, Mr
Ncapai
requested Mr Nkosi’s permission to sign on his behalf,
which Mr Nkosi granted.
[73]
The facts show that the final tender was
submitted with the full knowledge and participation of Mr Nkosi. Not
only did he sign some
documents, he gave permission to Mr Ncapai to
sign further documents on his behalf. Mr Ncapai did not attempt to
forge Mr Nkosi’s
signature, he effected his own signature. This
is consistent with his version that he was permitted to do so.
[74]
It is strange that ESS would go to the
lengths of discussing the possibility of partnering with Ekasi with
Mr Nkosi, obtain his
tax clearance certificate and a copy of his ID,
get him to sign some documents (which he accepted that he did in his
affidavit),
only to conceal the rest of the documents and effect a
signature of an employee of ESS without his permission. What
strengthens
ESS’ version further is that Mr Nkosi’s
details including his ID number and Ekasi’s tax registration
number were
filled in in the tender documents. Mr Ncapai also
answered ‘yes’ next to the question that asked whether
the tax clearance
certificate was submitted. Where would Mr Ncapai
have obtained this information if it was not submitted by Mr Nkosi?
The suspicion
raised by counsel for the appellants that the process
was hurried is not sufficient to indicate fraudulent conduct. It was
explained
by Mr Ncapai why the documents with signatures were
required urgently.
[75]
Counsel for the appellants sought the court
to draw another inference relating to the fact that ESS only
requested invoices for
training services from Ekasi a year after the
final tender was awarded (ie in or about May 2015). This issue was
not raised in
the founding affidavit as a ground for review. It arose
in the answering affidavit when ESS raised an issue that the
quotation
(attached to the answering affidavit) it received from
Ekasi was exorbitant. Ekasi required R15 000 per person for a
five-day training
course. This was way in excess of the EMS training
budget. In terms of the EMS pricing schedule, an amount of R2 896 per
person
was budgeted for training. If ESS were to go with Ekasi’s
quotation the total amount spent on training 600 individuals as
tendered would be R9 000 000, which is R7 262 438 more than the
amount tendered for training. ESS alleged that Ekasi was informed
of
this but did not change its stance. As a result, ESS decided to do
the training in-house in order to keep to the tendered amount.
It
partnered with another 100% black-owned company, Nokifurn Consulting,
for a completely different project of change management.
[76]
In order to show fraudulent
misrepresentation, the appellants would have to show that the false
statements which induced the awarding
of the tender were made at the
time of ESS submitting its proposal. From the facts set out above, no
misrepresentation could be
shown. ESS submitted the bid with Ekasi’s
knowledge and participation. That changes may have occurred after the
bid was awarded
due to different reasons is not a ground on which the
award of the tender or the conclusion of the contract can be found to
have
occurred in violation of the legality principle or to be
actionable as misrepresentation.
[77]
Consequently, the appellants have failed to
show non-compliance with statutory prescripts, the tender
specifications or misrepresentation
on all three challenges. Even if
non-compliance were to be remotely shown in some instances, the
degree is not so egregious so
as to invalidate the procurement
process or the contracts concluded. Assessed in terms of the
appellants’ prospects of success
in the review application,
such prospects were bleak or poor.
Conduct
[78]
As to conduct, it has been demonstrated
that the Department remained supine throughout the process, even
after it was alerted of
any possible irregularities. Although it took
steps to terminate the SLA with ESS after receiving advice from the
SIU, it remains
puzzling why it would be unsighted of any possible
wrongdoing throughout the implementation of the tender process. Not
only did
it fail to explain its role in the review proceedings, it
failed to provide a rule 53 record. Moreover, the Department did not
cover itself in glory during the arbitration proceedings either.
Through its attorneys, it admitted liability for the services
rendered by ESS and made an offer to pay all the invoices. The review
proceedings were brought long after the arbitration proceedings.
Prejudice
[79]
The prejudice that would be caused to ESS
and other service providers goes without saying, as they rendered
services to the Department
in terms of the SLA until the expiry of
the cancellation period. They have undoubtedly been affected by the
inordinate delay in
bringing the review application for projects
which commenced some years before the review application was brought.
The parts of
the answering affidavit which indicate that the
Department spoke highly of the ESS system are unrefuted. And of
course there is
the arbitrator’s finding against them.
Conclusion
[80]
As
was held by this Court in
Altech
Radio Holdings (Pty) Ltd and Others v City of Tshwane Metropolitan
Municipality
,
[34]
‘[t]he
objective
of state self-review should be to promote open, responsive and
accountable government. The conduct of [the Department]
renders the
delay so unreasonable that it cannot be condoned without turning a
blind eye to its duty to act in a manner that promotes
reliance,
accountability and rationality and that is not legally and
constitutionally unconscionable’.
[35]
[81]
In light of the inordinate delay, which has
not been sufficiently explained and which has been found to be
unreasonable; the egregious
conduct of the Department; the fact that
the review application has no merit; and the prejudice to be suffered
by other contracting
parties, and taking into account that the
challenges to the procurement process are flimsy, the delay should
not be overlooked.
[82]
We do not even get to the
Gijima
principle of whether the decisions to
award the tenders and the service level agreement should nonetheless
be set aside in terms
of s 172(1)
(a)
of the Constitution, as no clear unlawfulness in the awarding of the
tender and the contracts was shown on the facts. There is
accordingly
no reason to interfere with the order granted by the high court.
[83]
In the result, the following order is made:
The
appeal is dismissed with costs, including costs occasioned by the
employment of two counsel.
N P MABINDLA-BOQWANA
ACTING JUDGE OF APPEAL
APPEARANCES
For the appellants:
C
E Puckrin SC (with him H C
Janse van Rensburg)
Instructed by:
State
Attorney, Pretoria
State
Attorney, Bloemfontein
For the
respondent:
M C Maritz SC (with him S G Maritz and
J F van der Merwe)
Instructed by:
Van der Merwe
& Associates, Pretoria
Honey
Attorneys, Bloemfontein
[1]
Government
Gazette
No. 22531 of 31 July 2001.
[2]
Section
4(1)
(c)
of the SIU Act.
[3]
Section
5(5)
of the SIU Act.
[4]
Proclamation
No.R.18 of 2016, as published in
Government
Gazette
No. 39935.
[5]
‘Information technology’ in s 1 of the SITA Act ‘
means
all aspects of technology which are used to manage and support the
efficient gathering, processing, storing and dissemination
of
information as a strategic resource’.
[6]
In
s 1 of the PSIR Act, ‘security equipment’ means ‘
(a)
an alarm system;
(b)
a safe, vault or secured container;
(c)
a satellite tracking device, closed circuit television monitoring
device or surveillance equipment;
(d)
a device used for intrusion detection, access control, bomb
detection, fire detection, metal detection, x-ray inspection or for
securing telephone communications;
(e)
a specialised device used to open, close or engage locking
mechanisms; or
(f)
a specialised device used to reproduce or duplicate keys or other
objects which are used to unlock, close or engage locking
mechanisms’. ‘Security service’ includes ‘
(h)
installing, servicing or repairing security equipment’ and
‘
(i)
monitoring signals or transmissions from electronic security
equipment’.
[7]
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
[2017]
ZACC 40; 2018 (2) BCLR 240;
2018
(2) SA 23 (CC).
[8]
Gijima
para 2.
[9]
Gijima
para 27.
[10]
Govan
Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd
[2021]
ZASCA 34;
[2021]
2 All SA 700 (SCA).
[11]
ASLA
para 46.
[12]
ASLA
para 49.
[13]
Ibid.
[14]
ASLA
para 48.
[15]
Gqwetha
v Transkei Development Corporations Ltd
and
Others
[2005]
ZASCA 51
;
[2006] 3 All SA 245
;
2006
(2) SA 603
(SCA) para 33.
[16]
Khumalo
and Another v Member of the Executive Council for Education,
KwaZulu-Natal
[2013]
ZACC 49
;
2014
(5) SA 579
(CC) para 49.
[17]
ASLA
paras 48 and 50.
[18]
ASLA
para
52.
[19]
ASLA
para 53.
[20]
ASLA
para 54.
[21]
ASLA
para
55.
[22]
South
African National Roads Agency Ltd v City of Cape Town
[2016]
ZASCA 122; [2016] 4 All SA 332;
2017
(1) SA 468 (SCA).
[23]
SANRAL
para
81.
[24]
Member
of the Executive Council for Health, Eastern Cape and Another v
Kirland Investments (Pty) Limited t/a
Eye
&
Lazer
Institute
[2014]
ZACC 6
;
2014
(3) SA 481
(CC) para 82.
[25]
ASLA
para 63 referring to
Gijima
para
52.
[26]
ASLA
para 66.
[27]
ASLA
para 71.
[28]
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality and Another
[2017]
ZASCA 118
;
[2017]
4 All SA 624
(SCA) para 31.
[29]
ASLA
para 81.
[30]
Section
1 of the SITA Act.
[31]
In
terms of s 1 of the SITA Act ‘security business’ means
‘any person who renders a security service to another
for
remuneration, reward, fee or benefit, except a person acting only as
a security officer’.
[32]
A
‘security service provider’
means
‘a person who renders a security service to another for a
remuneration, reward, fee or benefit and includes such a
person who
is not registered as required in terms of this Act’ (s 1 of
the SITA Act).
[33]
Feinstein
v Niggli
1981 (2) SA 684
(A) at 695B-D;
Watson
NO v Ngonyama and Another
[2021] ZASCA 74
(SCA) para 59.
[34]
Altech
Radio Holdings (Pty) Ltd and Others v City of Tshwane Metropolitan
Municipality
[2020]
ZASCA 122
;
2021
(3) SA 25
(SCA).
[35]
Altech
para 71.