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[2020] ZALMPPHC 28
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Bha-Phalaborwa Municipality v Makwande Chartered Accountants and Business Advisors (3042/2019) [2020] ZALMPPHC 28 (27 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
Case
no: 3042/2019
27/5/2020
In
the matter between:
BA-PHALABORWA
MUNICIPALITY
APPLICANT
And
MAKWANDE
CHARTERED ACCOUNTANTS
AND
BUSINESS
ADVISORS
RESPONDENT
JUDGMENT
MULLER
J
:
INTRODUCTION
[1]
This is an application for a collateral review by the Ba-Phalaborwa
Municipality to
set aside its own decision to award a tender for
professional services to Makwanda Charter Accountants and Business
Advisors which
is a company that renders professional services as
charted accountants. In addition, the applicant also seek a
declaratory order
in terms whereof the service delivery contract
entered into between the parties is declared void
ab initio.
BACKGROUND
FACTS
[2]
The applicant invited tenders for professional services on GRAP
[1]
conversion and preparation of the 2008/09 ANNUAL FINANCIAL STATEMENTS
in the SOWETAN newspaper of 23 June 2009.
[2]
The closing date for tenders was 30 June 2009 at 10h00. The
advertisement clearly stated that the Ba-Phalaborwa Municipality
Supply
Chain Management Policy and The Preferential Procurement
Framework Act applied to the evaluation of the bid for award.
[3]
At 10h00 on the appointed day the officials opened the bids that were
deposited before
the cut-off time and completed the bidders register
which contained the names of the bidders whose bids were received.
The register
showed that five bids were opened.
[3]
The bids were opened in full view of the bidders that were present
and their names were announced. The respondent was not one of
the
bidders that deposited a bid.
[4]
On 7 July 2009, the municipal manager (KP Ntshavheni) addressed a
letter to:
‘
Unit
411 66 Pritchard Street Johannesburg’
[5]
The letter proceeded to state that the respondent was appointed for
the tender 19/2009
at the tender price of R584 000.00 excluding VAT.
In the letter the respondent is invited to negotiate the final terms
of their
contract and if terms are agreed, to sign a service level
agreement. A meeting to negotiate was scheduled for the next day at
Phalaborwa
at 11h00 at the office of the municipal manager.
[6]
On 12 April 2011 the respondent addressed a letter of demand to the
municipal manager saying that:
…
‘
Our
instructions are that our client entered into a written agreement
with the Ba-Phalaborwa Municipality on the 7
th
July 2009 to perform a GRAP convention and to prepare the
Municipality’s GRAP compliment annual financial statement as
prescribed
by Section 122 of the Municipal Financial Management
(“MFMA”) Act 56 of 2003 and in accordance with the
applicable
Notices and pronouncements of National Treasury and the
Accounting Standards Board pursuant to our client’s proposal
dated
the 30
th
of June 2009 which was submitted in response to Tender 19/2009
(“Tender”) issued by the Municipality in terms of Notice
33/2009.
Our Client rendered
professional services to the Municipality, the total cost of the
project was R2, 295, 426.80 all inclusive cost
and all the invoices
presented only R268 681.40 was paid and an amount of R1, 803, 441.45
is outstanding.
…’
[4]
[7]
The respondent instituted action against the applicant in the North
Gauteng High Court for the recovery
of R2 348 105 .15 on 5 July 2012.
In an amended particular of claim the respondent claimed that:
‘
5
During the year 2009
Defendant issued a tender under Tender Number 19/2009 of a Proposal
to do Grap Conversion and prepare Financial
Statements for the
2008/2009 financial year and to provide support for the Auditors of
the Municipality.
6.
Plaintiff submitted its
bid for the tender dated 30 June 2009 and the quotation for the work
to be done was R584 000.00 exclusive
of VAT, travel expenses and
accommodation. The project was expected to be presented to
Defendant’s management of the 15
th
August 2009. Such
tender document is enclosed herein as annexure “MAK 1”.
Defendant accepted the proposal of Plaintiff
and issued a letter of
appointment on the 7
th
July 2009. In terms of the letter
of appointment parties were to negotiate final terms of contract and
to sign a service level
agreement after agreeing. Letters of
appointment is enclosed herein as “MAK 2”
7.
Plaintiff
issued a letter of engagement dated 08 July which contained terms and
scope of services. Copy of the engagement letter
is enclosed herein
as “MAK 3”
10
Claim 2
On
or about 08 July 2009 and at Phalaborwa, Limpopo Province, the
plaintiff, duly represented by Ronald Nhleko, and the Defendant,
duly
represented by Ms Khumbudzo Ntshabeni, Mr Aubrey Mushwana and Mr TV
Machete in their capacities as the Municipal Manager,
Finance Manager
and Head of Procurement respectively, entered into a contract that
the scope of work done by the Plaintiff in terms
of the original
contract could be extended, subject to the performance of a “gap
analysis” and “mutual agreement”
as per engagement
letter already attached and marked as annexure “MAK 3”.
11
The plaintiff entered
into an oral contract (hereinafter referred to as “the second
contract”) with the Municipal Manager
in terms of which the
scope of work to be done by the Plaintiff in terms of the original
was extended as per addendum, revised
the project plan and engagement
letter already attached and marked as annexure “MAK 3”.
12
It was an implied term of
the agreement that the Defendant would remunerate the Plaintiff on
the same terms and conditions as contained
in the engagement letter
referred to in annexure “MAK 3”
[8]
The action is defended by the applicant and is pending at this
juncture. The present
application is also premised on the allegations
contained in the particulars of claim, more particularly, with
reference to the
allegations that the original contract had been
amended orally or that another contract had been entered into in
terms whereof
the scope of the original contract had been extended in
terms of an addendum.
[9]
The application is based on the following irregularities that had
been committed:
(1)
the
failure of respondent to submit a bid before 30 June 2009 at 10h00.
(2)
the
failure of respondent to comply with the provisions of the applicable
Supply Chain Management Policy;
(3)
the
oral amendment of the written service level agreement between
respondent and the applicant.
[10] I
interpose to refer to the Supply Chain Management Policy document of
the applicant. Section 18.3.4.4, 5 and 6
provides:
‘
4.
Bids submitted to the municipality must be in a sealed envelope,
clearly indicating the purpose of the tender as well as an allocated
tender number, and must be submitted through the Municipal Tender
Box. The Head: SCM shall ensure that such tender boxes are sealed
until the date and time of their official opening, and that they are
properly secured at all times.
5. For a bid to be
considered it must comply with all the requirements as stipulated in
the tender document.
6. No bids received after
the closing time shall be considered.’
[11]
When an applicant seeks final relief in motion proceedings
disputes
of fact must be determined on the facts as stated by the respondent
together with the admitted or undisputed facts in
the founding
affidavit. The founding affidavit of the applicant provides the
factual basis for determination unless denials or
disputes which are
raised in the version of the respondent are not real or genuine or
the denials are bald or unworthy of credit
or the version of the
respondent raises such obvious fictitious disputes of fact or is so
untenable or implausible that a court
is justified in rejecting that
version.
[5]
[12]
I now turn to consider the version put forward
by the respondent. The
respondent stated that the deponent to the answering affidavit
personally submitted the respondent’s
tender documents before
the deadline of 10h00. According to the respondent the tender box had
been placed outside the administration
building where the bid
documents were to be submitted. There was no register present nor was
there any form of receipt given to
him as proof of submission of the
bid. The applicant is to be blamed, if the name of the respondent was
not recorded in any of
the registers. It is the contention of the
respondent that the applicant had the responsibility for the
integrity and adequacy
of controls in the process, once the bids have
been placed in the box. The respondent asked the rhetorical question
as to how it
was possible for the bid of the respondent to have made
its way to the tender evaluation and the adjudication committees? The
respondent
questioned the adequacy of the controls put in place to
ensure the integrity of the tender box and also question the
particularity
provided in the founding affidavit.
[13]
It is common cause that the 14 day advertisement
period had not being
complied with, but the respondent asserts that the period may be
deviated from under exceptional circumstances
or urgency. The
respondent is unable to say that exceptional circumstances did in
fact exist, save to state that there was a deadline
of 31 August 2009
for the submission of the financial statements to the Auditor
General.
[14]
The respondent admits that the applicant made
payment of R268 681.40
to the respondent for professional work done. The respondent disputes
that the contract price was the amount
of R584 000.00, and pointed
that:
‘
In
amplification of the above denial, the envisaged initial bid price
could be described as a function of a fixed and variable cost.
Both
the fixed known cost and a variable unknown, but predictable cost
were specified in both the Respondent’s bid documents
and its
contract subject to certain specifically predetermined parameters.
The variable cost was contingent on certain factors
and options,
which turned out to be realised and the Applicant initiated the
process by exercising its option to call for performance
in terms of
its contract with the Respondent and the latter discharged on this
mandate in good faith. Comparisons of the price
specification could
be made to for example to a contract of an unspecified value but only
giving rates.’
[15]
The variable costs are reflected in the
respondent’s tender
documents. And the marginal variable costs comprised of
disbursements, costs relating to the extensive
“backlog
accounting work” as well as costs related to addressing the
requirements of the auditors.
[16]
As far as the oral agreement is concerned,
the respondent says that
the oral agreement was concluded between the parties to give effect
to the written agreement, and in particular,
the variable costs to
which the respondent had alluded to in its tender documents with
reference to the engagement letter and the
bid documents. The
respondent states that due to the variable costs component of the
agreement the contract price in reality did
not increase but the
variable costs were realised and allocated.
[17]
Counsel for the respondent in argument,
without conceding that the
oral contract entered into is void for want of compliance with
section 116(1)(a) of the Municipal Finance
Management Act,
[6]
submitted that the court should not review and set aside the contract
as being void
ab
intitio,
but
declare the contract unlawful. He argued that that the respondent
will retain its rights that flow from the contract if the
contract is
declared unlawful.
[18]
It was pointed out in the replying affidavit
that the tender box with
a slit wide enough to accommodate an envelope is a fixture which is
mounted to the wall inside the community
hall, which is impossible to
move. The keys to the box were in possession of an official, Mrs
Kleynhans, who has since resigned.
Her whereabouts is unknown.
She handed the keys to Ms visser who together with Mr Mthombeni and
Ms Modjadji opened the box
shortly after 10h00. The names of the
bidders were announced by Ms Visser in the presence of the bidders
who were present and their
names immediately recorded in the bidder’s
register.
[19]
The denials of the respondent are verbose
and riddled with conjecture
and far-fetched contentions. Very little of what is said, is factual.
The explanation that the tender
box was outside the administrative
building is plainly untrue. The box is a fixture inside a building.
[20]
The officials that retrieved the envelopes
containing the bids from
the tender box did so in the normal course of their duties. It simply
defies logic that this bid was not
recorded in the register but
nevertheless found its way with the other bids into the system.
[21]
If the respondent submitted a bid before
the box was opened, its name
together with the names of all bidders should have been announced and
recorded in the register. The
contents of the register (which was
completed contemporaneously with the opening of the box and the
opening of envelopes containing
the respective bids) is strong
prima
facie
proof that the bid of the respondent was not in the box
with the other bidders when it was opened. The version of the
respondent
in my judgment is so implausible that it can safely be
rejected out of hand. In my view, the respondents bid was not
deposited
in the box as required but found its way into the process
contrary to the supply chain management policy document.
[22]
The contract price of R584 000.00 (exclusive
of VAT) which was
confirmed by the municipal manager in a letter on 7 July 2009 has
sky-rocketed to R2 268 681.40 on 8 July 2009
in terms of an oral
agreement concluded on the very day after the contract was awarded.
It boggles the mind that such an increase,
without council approval,
could have been negotiated and agreed upon for the same work tendered
for. The explanation proffered
by the respondent as the reason for
the conclusion of the oral agreement is incomprehensible,
indigestible, and is undeserving
of acceptance.
[23]
The respondent is a company which purports
to be charted accountants
who professes to be experts in municipal finance and able to draft
annual financial statements for the
applicant. It ought to have been
aware of the provisions of the MFMA, and more particularly, section
116.
[24]
I digress for a moment to refer to the relevant
provisions of section
116 which provide that:
(1)
A contract or agreement procured through the supply chain management
system of a municipality
or municipal entity must-
(a) be in
writing
(b) stipulate the
terms and conditions of the contract or agreement which must include
provisions providing for-
the termination of the
contract or agreement in the case of non or under- performance;
(i) dispute
resolution mechanisms to settle disputes between the parties;
(ii) a
periodic review of the contract or agreement once every three years
in the case of a contract or agreement
for longer than three years;
and
(iii) any
other matter that may be prescribed
(2) …
(3) A contract or
agreement procured through the supply chain management system
of the municipality or
municipal entity may be amended by the parties, but only after-
(a)
the
reasons for the proposed amendment have been tabled in the council of
the municipality or, in the case of a municipal entity,
in the
council of its parent municipality; and
(b)
the
local community-
(i) has been given
reasonable notice of the intention to amend the contract or
agreement; and
(ii)has been invited to
submit representations to the municipality or municipal entity’.
[25]
It matters not if the oral contract referred to by the respondent
amended the original contract
or if the oral contract substituted the
original contract. The oral contract or agreement fell afoul of the
provisions of section
116(1)(a) and section 116(3). Both the
provisions are peremptory. As far as compliance with the provisions
section 116(3) are concerned,
it is undisputed that the proposed
amendment could not have been, and was not tabled in the council
because the amendment was discussed
and orally agreed upon, the very
day after the respondent was notified that the contract was awarded
to it. The local community
in any event had not been notified of the
intention to amend.
[26]
It is unnecessary, in the light of the findings the court have made
in relation to the failure
to deposit the bid of the respondent in
the tender box and in relation to the oral amendment of the contract,
to determine whether
the failure to comply with clause 18.3.4.2 of
the Supply Chain Management Policy, was fatal.
[27]
Section 217(1) of the Constitution lays down that when an organ of
state contract for goods or
services it must do so in accordance with
a system that is fair, equitable, transparent, competitive and cost
effective.
[28]
The tender process constituted ‘administrative action’
under the Constitution which
entitles all participating tenderers to
lawful and procedurally fair process and outcome
[7]
.
The award of a tender is similarly administrative action
[8]
.
[29]
The collateral challenge is raised by means of a review of the
decision to award the tender to
the respondent. It is legality based,
on the rule of law, which is a foundational to the Constitution,
[9]
and was launched in reaction to the action instituted by the
respondent against the applicant, some, 10 years after the tender
was
awarded and the contract concluded and competed.
[30]
The respondent instituted action for the recovery of its fee for work
done in 2012. The delay
for bringing the application is explained in
9 paragraphs in the founding affidavit. The applicant pointed out
that it defended
the action of the respondent and that prior to 2016
a collateral challenge was not available to the applicant. The
attorney that
acted on behalf of the applicant passed away in 2018.
The action was set down for trial on 9 April 2019. After the current
attorneys
had been appointed, advice from senior counsel was sought
and obtained. The action was postponed and an agreement was reached
that
the present application be launched. The respondent opposed the
application and also the condonation sought for the failure to launch
the collateral attack within a reasonable period.
THE LAW
[31]
It is axiomatic that municipal functionaries are enjoined to uphold
and protect the rule of law.
A general duty rests on the municipality
to seek redress for unlawful decisions taken by any of their
departments. This duty is
explained in
Khumalo
v Member of the Executive Council for Education: Kwa Zulu Natal
:
[10]
‘
Section
237 of the Constitution provides: ‘All constitutional
obligations must be performed diligently and without delay.’
Section 237 acknowledges the significance of timeous compliance with
constitutional prescripts. It elevates expeditious and diligent
compliance with constitutional duties to an obligation in itself. The
principle is thus a requirement of legality’.
[11]
[32]
Ordinarily, a party should launch an attack against a decision within
a reasonable time. The
applicant must advance cogent reasons for the
court to condone a delay as extensive as the present.
[12]
[33]
The effect of the decision over the period of time and the prejudice
suffered by the respondent
due to the delay is an important
consideration in the assessment, if the applicant has lost its right
to a remedy.
[34]
The respondent instituted the action in 2012. A plea was delivered in
2016. The applicant had
ample time and adequate opportunity to obtain
the information necessary for a collateral review since 2016.The
applicant, with
little reflection, should have been able to discover,
early on, that there was malfeasance because of the oral amendment
and because
the amount claimed in the particulars of claim and the
amount of the tender which was accepted, cannot be so markedly
different.
The alarm bells that were ringing should have been
deafening.
[35]
It is common cause that the respondent rendered professional services
to the applicant during
August until November 2009. The respondent
was paid the amount of R268 681.40 for those services. The respondent
seeks to recover
R2 348 105.15 in the action instituted for the
services it rendered to the applicant.
[36]
It is not the purpose of this judgment to comment on the strength or
weakness of the claim or
the veracity of defences raised in the plea.
Whatever the position might be, it is uncontroverted that the
respondent rendered
professional services to the applicant.
[37]
Both counsel was alive to this fact. Counsel for the respondent
contended that the respondent
will be prejudiced in the action, if
this court should condone the lapse of time and set the contract
aside. The respondent will
be forced to reconsider the sustainability
of the present claims if that happens and will have to consider an
amendment of its
particulars of claim to put up a fresh claim on a
different cause of action, altogether. The applicant will, no doubt,
in such
an event, raise prescription as a special defence, so the
argument ran.
[38]
Counsel for the applicant submitted in response, that the applicant
is willing to give an undertaking
not to raise prescription in the
event of this court setting aside the decision as invalid and the
contract as void. It is accepted
by counsel for the applicant that
the respondent, as a consequence, will be forced to change tack.
Counsel, as stated earlier,
acknowledged that professional services
had indeed been rendered to the applicant and that the respondent
should be fairly remunerated
for services actually rendered. He made
it clear that the concession is made without admitting that the
services were adequately
and professionally rendered.
[39]
This court is not disposed to deny a remedy to the applicant where it
seeks to set aside egregious
illegal administrative acts, even after
such a long delay. A remedy denied tantamount to validating an
obvious invalid administrative
act.
[13]
The public interest demands that a remedy be granted to the applicant
despite the indifference and lack of interest displayed by
the
applicant to promptly and timeously attack the invalid award.
[40]
The correction and reversal of invalid administrative actions is
firmly grounded in section 172(1)
of the Constitution which requires
a court to declare any law or conduct inconsistent with the
Constitution invalid to the extent
of its inconsistency. Closer to
home; the conclusion of the contact which flowed from the decision by
the applicant to award the
tender to the respondent is grounded in
the Constitution. The invalidity of the award rubs off on the
validity of contract which
was concluded and also orally amendment.
In
Merafong
City Local Municipality v AngloGold Ashanti Ltd
[14]
the principle is stated:
‘
Hence
the central conundorum of
Oudekraal
that “an unlawful act can produce legally effective
consequences” is constitutionally sustainable, and indeed
necessary.
This is because, unless challenged by the right challenger
in the right proceedings, an unlawful act is not void or
non-existence,
but exists as a fact and may provide the basis for
lawful acts pursuant to it. This leads to a logical corollary, which
this Court
recognised in
Giant
Concerts,
that an own-interest litigant may be denied standing “even
though the result could be that an unlawful decision stands.”
[15]
[41]
The public interest in procurement is an important factor to be
considered when the rights and
obligations of all affected parties
are assessed.
[16]
The setting
aside of the award will effectively deprive the respondent of a
contractual remedy. As stated previously, counsel for
the respondent,
alive to this consequence, suggested that if the court is minded to
grant the relief prayed, to rather declare
the contract unlawful.
Even if the contract is declared void, the respondent will not be
non-suited thereby and will not be without
an appropriate remedy. The
undertaking by the applicant not to raise prescription will alleviate
any prejudice that the respondent
might suffer in the pending
action.
[17]
[42]
The public generally, and in particular those members of the
community of Phalaborwa who pay
rates, taxes, and other levies
towards their municipality, have a real and a direct interest in the
administration of the public
purse which the Ba-Phalaborwa
municipality and other municipalities throughout the country are
privileged to administer. Fruitless
and unauthorised expenditure
touch their pockets and impact severely on much needed service
delivery that they are entitled to,
and expect.
[43]
When contracts are entered into by the public functionaries under
corrupt or illegal circumstances,
the public interest dictates that
those responsible should be brought to book swiftly and expertly. It
has been far too long that
the public has been soothed with countless
empty promises and threats by politicians that corrupt activities of
officials will
be rooted out and that they will be prosecuted. To no
avail. Little, if nothing, has been done in this Province, in
particular,
to prosecute corrupt officials and others that benefitted
from corrupt activities. It is high time that the malfunctioning
state
machinery grinds into gear before all faith is lost in the
criminal justice system.
[44]
The impact of corrupt activities is so devastating and repugnant that
the courts should do all
in its power to ensure that nobody should
benefit from those activities, must less those in powerful positions.
[45]
It is clear that various provisions of the MFMA had been contravened
by officials of the applicant
in this instance. It will be surprising
to learn that steps had been taken against any of those officials. It
leaves the distinct
impression, if no steps were taken, that
officials are being protected to the detriment of the public.
[46]
Inactiveness by the council is a reflection of a lack of an
understanding of its oversight role
and is evidence of perfunctory
performance of its constitutional mandate.
CONCLUSION
[47]
I have come to the considered conclusion that the award of the tender
19/2009 must be set aside.
It follows, also, that the service level
contract and any oral amendment of the contract entered into between
the applicant and
the respondent be declared void
ab initio.
[48]
I am not inclined to grant prayers 3 or 4 on the basis that the
respondent rendered a professional
service to the applicant. The
trial court in the action instituted by the respondent is best suited
to determine if the respondent
is to be remunerated for the work it
has done. I am minded to record the undertaking in the order and
report the matter to the
Deputy Director of Public Prosecutions;
Polokwane to consider institution of prosecution, if warranted by the
facts, following
an investigation.
[49]
The applicant did not seek costs in the notice of motion but counsel
submitted that the respondent
should pay the costs of the
application. No submissions to the contrary were made.
[50]
I therefore, make the following order:
ORDER
1.
The
award of tender No 19/2009 to the respondent on 7 July 2009 is set
aside.
2.
The
service level contract concluded between the applicant and the
respondent, inclusive of any oral amendment to the contract,
is
declared void
ab
intio,
and
is set aside.
3.
The
respondent is ordered to pay the costs of the application.
4.
It
is recorded that the applicant has undertaken not raise prescription
as a defence in the pending action between the parties instituted
in
the High Court Gauteng Division: Pretoria, under case no 48033/12.
5.
A
copy of this judgment must be forwarded to the Deputy Director Public
Prosecutions: Polokwane.
GC
MULLER
JUDGE OF THE HIGH
COURT LIMPOPO DIVISION: POLOKWANE
APPEARANCES
1.
For the Applicant
: JA Motepe SC
2.
For the Respondent
: D Thumbathi
3.
Date of hearing
: 21 May 2020
4.
Date of Judgment delivered
: 27 May 2020
[1]
Generally
Recognised Accounting Practice.
[2]
Tender 19/2009.
[3]
They were: (1) MRL
Incorporated Carted Accountants (2) R Kalidass & Associates (3)
Altimax Training Academy (4) KPMG Services
(5) TMDG Consulting (Pty)
Ltd.
[4]
Only the relevant
portions of the letter of demand are quoted.
[5]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) 634H-635C;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) par 26.
[6]
Act 56 of 2003.
(Hereinafter ‘the MFMA’).
[7]
The Promotion of
Administrative Justice Act, Act 3 of 2000.(Hereinafter PAJA.).
Logbro
Properties CC v Bedderson NO and Others
2003 (2) SA 460
(SCA) par 5.
[8]
Cape
Metropolitan Council v Metro Inspection Services CC
2001 (3) SA 1013
(SCA par 16-18.
[9]
Section 1(c) of
the Constitution.
[10]
2014 (5) SA 579
(CC).
[11]
Par 46.
[12]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A)
44D-E; Setsokosane
Busdiens
(Edms) Bpk v Voorsitter Nasionale Vervoerkommissie en ‘n Ander
1986 (2) SA 57
(A) 82G-83D.
[13]
Metal &
Electrical Workers Union of South Africa v National Panasonic Co
(Parow Factory)
1991 (2) SA 527
(C) 533A-B.
[14]
2017 (2) SA 211
(CC).
[15]
Par 36. Footnotes
are omitted.
[16]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and
Others
2014 (4) SA 179
(CC) par 32-33.
[17]
Counsel agreed
that mediation could be explored as an option depending on future
developments in the action.