CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 342/22
In the matter between:
GREATER TZANEEN MUNICIPALITY Applicant
and
BRAVOSPAN 252 CC Respondent
Neutral citation: Greater Tzaneen Municipality v Bravospan 252 CC [2024]
ZACC 20
Coram: Bilchitz AJ, Chaskalson AJ, Dodson AJ, Madlanga J, Majiedt J,
Mathopo J, Mhlantla J, Theron J and Tshiqi J
Judgments: Bilchitz AJ (concurring): [1] to [53]
Chaskalson AJ (majority): [54] to [63]
Dodson AJ (concurring): [64] to [68]
Heard on: 20 February 2024
Decided on: 2 October 2024
Summary: Compensation for services delivered pursuant to an unlawful
tender process — court not placed in a position to decide
substantive basis for compensation — in the interests of justice not
to delay compensation — unacceptable conduct for organs of state
to use own unlawful conduct to avoid compensating innocent
contractors
2
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Limpopo Division, Polokwane):
1. Leave to appeal is refused.
2. The applicant is ordered to pay the respondent’s costs in this Court, including
the costs of two counsel.
JUDGMENT
BILCHITZ AJ (Mathopo J concurring):
Introduction
[1] The Constitution enjoins organs of state to maintain and promote a high standard
of professional ethics.1 Moreover, when contracting for goods and services, organs of
state are mandated to do so in accordance with systems that are fair, equitable,
transparent, competitive and cost -effective.2 This case concerns a municipality , the
Greater Tzaneen Municipality (Municipality), the applicant in this matter , that
purported to extend an existing contract for the provision of security services, in the
absence of a lawful tender process. Upon recognising the failure to conform to its own
procurement processes, the Municipality applied to invalidate the extension of the
contract. Notwithstanding the invalidity application, the Municipality requested the
respondent, Bravospan 252 CC (Bravospan), to continue providing services but failed
to pay for them.
1 Section 195(1)(a) of the Constitution.
2 Section 217(1) of the Constitution. See also Steenkamp N .O. v Provincial Tender Board , Eastern Cape
[2006] ZACC 16; 2007 (3) SA 121 (CC); 2007 (3) BCLR 300 (CC) (Steenkamp) at para 33.
BILCHITZ AJ
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[2] The contract was declared invalid in one set of legal proceedings but no order
was made concerning compensation for the services that had already been delivered.
Bravospan then brought separate proceedings to claim payment for the performance it
had rendered. The High Court found in favour of Bravospan based on the common law
of unjustified enrichment. The present application is against the Supreme Court of
Appeal’s order that Bravospan was entitled to claim compensation but on a different
underlying legal foundation to the decision of the High Court – namely, through the
exercise of a court’s power to make any order that is just and equitable in terms of
section 172(1)(b) of the Constitution.3
Background
[3] In 2013, the Municipality advertised a tender for the supply of security services.
In the advertisement, the duration of the contract was not clearly stipulated. At a
briefing session, the Municipality informed the potential bidders (including Bravospan)
that the initial term of the contract would be for 12 months and could be subject to an
extension, depending on price.
[4] Following a competitive bid process, Bravospan was awarded the tender to
provide the Municipality with security services. On 20 November 2013, the parties
entered into a written agreement, the terms of which required Bravospan to provide the
following services:
3 Section 172(1) of the Constitution states:
“When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent auth ority to correct the
defect.”
BILCHITZ AJ
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“4.6.1 Installation and commissions of CCTV surveillance system at the foll owing
Municipal areas:
- Civic Centre (main building) – CBD streets
- Tzaneen Library
- Tzaneen Testing Ground
- Municipal Stores
- Electrical Power Station
- Nkowankowa Testing Ground
- Mechanical Workshop
4.6.2 Maintenance, repairs and support of CCTV system
4.6.3 To provide staff to monitor the control room for 24 hours [seven] days a week.”
[5] The clause relating to the duration of the contract provided as follows:
“5.1 The value of this contract shall be R2 757 666.60 for a period of 12 months.
Should the Municipality wish to extend the service, written agreement must be
negotiated and signed by the two parties especially on prices.”
[6] Pursuant to the conclusion of the agreement, Bravospan set up a fully equipped
control room and installed monitor ing equipment at the contractually specified sites.
All invoices for these services were honoured and paid in full by the Municipality in
terms of the agreement.
[7] Shortly before the termination of the contract, the parties entered into
negotiations to extend the agreement for a further 24 months. During these negotiations,
Bravospan specifically asked the Municipality about the validity of an extension
agreement without an additional bid process. The Municipality, on the strength of a
legal opinion it obtained, assured Bravospan that the agreement could be lawfully
extended without the need for a further tender process.
[8] On 28 August 2014, the parties purported to extend the duration of the agreement
for a further period of 24 months (extension agreement), without an additional tender
process. The terms of the extension agreement included additional sites at which
BILCHITZ AJ
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Bravospan would provide security services. The agreed value of th e contract was
increased accordingly to R9 624 000.
[9] Despite the li tigation discussed below, Bravospan continued to provide the
services specified in the extension agreement to the Municipality until the end of the
24-month period (31 October 2016) and delivered monthly invoices to the Municipality.
The Municipality failed to honour these invoices. A demand for the Municipality to
compensate Bravospan for the services delivered in t erms of the extension agreement
resulted in litigation and the present application before this Court.
Litigation history
High Court – the invalidity application
[10] On 9 February 2015, the Municipality brought an application in the High Court
of South Africa, Limpopo Division, Polokwane (High Court) seeking an order declaring
the extension agreement null and void, or, in the alternative, reviewing and setting aside
the agreement. Bravospan opposed the application and filed a counter -application for
the payment of R2 005 000, that comprised the amount for services rendered in terms
of the extension agreement, as at the date of the proceedings.
[11] The Municipality contended that the extension agreement was concluded
without a tender process and , therefore, was not in compliance with section 217(1) of
the Constitution, 4 sections 1115 and 112(1) 6 of the Local Government: Municipal
4 Section 217(1) states that “[w]hen an organ of state in the national, provincial or local sphere of
government . . . contracts for goods and services, it must do so in accordance with a system which is fair, equitable,
transparent, competitive and cost-efficient.”
5 Section 111 provides that each municipality must have and implement a supply chain management policy that
complies with the provisions of the Act.
6 Section 112(1) provides that a municipality’s supply chain manag ement policy must comply with the
requirements in section 217(1) of the Constitution and lists certain measures and processes that the policy must
contain.
BILCHITZ AJ
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Finance Management Act7 and Circular 628 issued by the National Treasury which
contains guidelines and measures to improve accountability and transparency in
municipal procurement processes.9 In its founding affidavit, the Municipality submitted
that in terms of its own policy, based on Circular 62, competitive bids had to be invited
when any goods or services were procured in excess of R200 000 (VAT inclusive) or
for any contract that exceeded one year in duration. In addition, the policy required the
preparation and publication of a bid specification inviting qualifying bids, which are
evaluated by a Bid Evaluation Committee. The award of a preferred bidder is then
decided by a Bid Adjudication Committee.
[12] In its opposing papers, Bravospan submitted that the Municipality had failed to
adhere to clauses 14 and 15 of the extension agreement , which provided for the
settlement of disputes by consultation and, if that fails, a referral of the dispute to
arbitration. On the merits, Bravospan placed reliance on clause 5.1 of the agreement,
which permitted the possibility of negotiating and agreeing upon an extension. It
submitted that this clause was complied with and, therefore, the extension agreement
was properly negotiated and valid. Further, it alleged that the defenc e of estoppel was
available to it, given the express recordal that the Municipality was represented by the
acting municipal manager who was duly authorised to enter into the contract by the
municipal council. The Municipality provided Bravospan with no re ason to suspect
that its internal processes were not followed when the extension agreement was
concluded.
[13] On 8 July 2015, the Municipality made a written offer of settlement to Bravospan
and on 10 July 2015, it wrote to Bravospan requesting it to continue rendering services
until a new service provider was appointed. On 13 July 2015, Bravospan appears to
7 56 of 2003.
8 National Treasury MFMA Circular No. 62 Supply Chain Management: Enhancing Compliance and
Accountability (July 2013).
9 Id at 1.
BILCHITZ AJ
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have accepted the offer of settlement but the negotiations did not proceed any further
and the matter was argued before the High Court on 29 April 2016.
[14] On 19 August 2016, Mokgohloa DJP delivered judgment in favour of the
Municipality and held that the extension agreement was invalid for want of compliance
with the Municipality’s legal obligations when conducting procurement processes.
Bravospan’s reliance on estoppel was rejected on the basis that to uphold the transaction
would grant validity to a contract that was unlawful and ultra vires (beyond the
Municipality’s legal powers). Nothing was said about compensation for the services
already delivered. As a result, the following order was granted:
“1. The extension of a service level agreement concluded between the
[Municipality] and [Bravospan] is declared null and void.
2. The counter-application is dismissed with costs.
3. [Bravospan] is ordered to pay the costs of the application on an attorney and
client scale.”
[15] Aggrieved by this order, Bravospan brought an application for leave to appeal to
the Full Court of the High Court, which was dismissed by Mokgohloa DJP on
9 November 2016. A subsequent application for leave to appeal to the Supreme Court
of Appeal suffered the same fate on 27 February 2017.
High Court – the compensation application
[16] On 8 September 2017, Bravospan delivered a notice in terms of section 3(2) of
the Institution of Legal Proceedings against Certain Organs of State Act 10
(Legal Proceedings Act) to the Municipality. That notice related to an intended
damages claim against the Municipality.
[17] On 19 January 2018, Bravospan issued summons in the High Court and claimed
from the Municipality an amount of R9 624 000, comprising the contractual amount
10 40 of 2002.
BILCHITZ AJ
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specified in the extension agreement. In its particulars of claim, Bravospan relied on
four alternative causes of action, namely, (a) delict; (b) fraudulent misrepresentation;
(c) unjustified enrichment; and (d) constitutional damages. The Municipality opposed
the action and raised four special pleas: (a) res judicata (the claim has already been
adjudicated); (b) non-compliance with section 3(2) of the Legal Proceedings Act;
(c) that constitutional damages did not constitute an appropriate remedy; and
(d) prescription.
[18] In the pre-trial minute of 21 September 2020, the parties agreed to a separation
of the question of liability from the determination of the quantum of compensation that
might be found to be due . The only issue before the High Court was, therefore, to
determine the question of liability . It was agreed by the parties that i f the High Court
found in favour of Bravospan, the issue of quantum would be referred to mediation.
[19] On 2 February 2021, the High Court, per Makgoba JP, delivered a judgment on
the merits and found in favour of Bravospan on the basis of the unjust ified enrichment
cause of action. The Court held that it was unnecessary to consider the other three
causes of action. It dismissed the Municipality’s special pleas in relation to res judicata,
non-compliance with the Legal Proceedings Act and prescription. The following order
was granted:
“41.1. [Bravospan] has made out a case against the defendant based on unjust
enrichment.
41.2. The [Municipality] is ordered to pay [Bravospan] an amount determined under
the disputed quantum.
41.3. The [Municipality] [is] to pay the costs of this action on [the] party and party
scale.”
Supreme Court of Appeal – the compensation appeal
[20] With leave granted by Makgoba JP, the Municipality, on 29 April 2021,
appealed to the Supreme Court of Appeal against Makgoba JP’s judgment and order.
The ap peal was limited to the two special pleas that had been dismissed by the
BILCHITZ AJ
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High Court: first, that Bravospan had failed to comply with the provisions of
section 3(2) of the Legal Proceedings Act and second, that a portion of Bravospan’s
claim had prescribed.
[21] During the hearing, the Supreme Court of Appeal, of its own accord, raised the
possibility of granting compensation under section 172(1)(b) of the Constitution and
ordered the parties to deliver supplementary heads of argument on th at issue. The
parties complied with this order.
[22] On 7 November 2022, the Supreme Court of Appeal found that no case had been
made out on the two grounds of appeal. It went on to hold, however, that the High Court
had incorrectly awarded compensation based on unjustified enrichment. South African
law, it reasoned, had not yet recognised a general enrichment action and that made the
finding of the High Court not “sustainable in law”. 11 It nevertheless reasoned that it
would be “manifestly unjust for Bravospan to be afford ed no compensation for the
services that it had rendered to the [M]unicipality”.12 In the Supreme Court of Appeal’s
view, there were exceptional circumstances warranting an order of compensation under
an alternative legal foundation, namely, section 172(1)(b) of the Constitution.
[23] The Supreme Court of Appeal held that section 172(1)(b) confers a wide
discretionary power upon courts to make any order that is just and equitable. That
power, the Court held, would normally be triggered when a court declar es a law or
government conduct invalid. The Court found that this power enables a court to address
circumstances that could lead to injustice where parties have materially changed their
position on the assumption that the law or conduct relied upon was valid. It also found
that there was no reason, in principle, why relief under subsections 172(1)(a) and (b)
could not be claimed in separate proceedings. As a result, the Supreme Court of Appeal
made the following order:
11 Greater Tzaneen Municipality v Bravospan 252 CC [2022] ZASCA 155 (Supreme Court of Appeal judgment)
at para 15.
12 Id at para 15.
BILCHITZ AJ
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“1 The appeal is upheld with no order as to costs.
2 The order of the High Court is set aside and replaced with the following:
‘(a) It is declared that [Bravospan] is entitled to compensation for
the services rendered to the [ Municipality] during the period
from 1 November 2014 to 31 October 2016 as a just and
equitable remedy under section 172(1)(b) of the Constitution;
(b) Costs of the hearing on the merits are reserved.’
3 The matter is referred back to the High Court to determine the quantum of that
compensation in accordance with the applicable law.”
[24] It is paragraphs 2 and 3 of this order against which the Municipality seeks leave
to appeal in this Court and asks us to overturn.
In this Court
Applicant’s submissions
[25] On jurisdiction, the Municipality submits that its application for leave to appeal
concerns the proper interpretation and application of section 172(1) of the Constitution,
which is a constitutional matter. The key issue is whether a court other than the court
making a declaration of invalidity can subsequently, on the basis of a fresh claim, grant
compensation in terms of section 172(1)(b). The Municipality asserts that l eave to
appeal should be granted because the application has reasonable prospects of success
on this point.
[26] On the merits, the Municipality submits that the Supreme Court of Appeal was
not entitled to grant relief mero motu (of its own accor d) on the basis of
section 172(1)(b) when that matter was not squarely before it. The causes of action
underlying the claim had not been formulated in terms of this section, nor was the
awarding of compensation a “constitutional matter” as contemplated in section 172(1).
BILCHITZ AJ
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[27] Moreover, section 172(1)(b) cannot be invoked in separate court proceedings to
those in which a declaration of invalidity in terms of section 172(1)(a) is made. The
court considering invalidity is the only court competent to make a compensation order
in terms of section 172(1)(b). Ordinarily, declarations of invalidity have retrospective
effect and it is for the court making that order to decide whether to limit retrospectivity.
The Municipality contends that section 172(1)(b) is n ot a self-standing provision upon
which a damages claim can be founded.
Respondent’s submissions
[28] Bravospan submits that leave to appeal ought to be denied. It avers that the
Supreme Court of Appeal’s judgment is in all material respects correct and there are no
reasonable prospects of success.
[29] On the merits, Bravospan submits that it pleaded a cause of action rooted in the
Constitution, namely, constitutional damages, before the High Court. In addition, it
contends that evidence was led in support of all four causes of action and that it was the
High Court that decided to make a finding on one cause of action and not the others.
That, however, does not mean that the High Court had dismissed the other causes of
action. The Supreme Court of Appeal, therefore, had not raised section 172(1)(b)
mero motu and it was open to it to consider that section as an alternative basis for
awarding compensation.
[30] Moreover, relying on this Court’s decision in Steenkamp,13 the Supreme Court
of Appeal had found correctly that the improper performance of an administrative
function entitles the aggrieved party to appropriate relief. Section 172(1)(b) could also
be invoked in separate proceedings to a declaration of invalidity where a basis for that
relief was pleaded.
13 Steenkamp above n 2.
BILCHITZ AJ
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[31] Bravospan submits that it was an innocent contractor who had taken the
additional precautionary step of enquiring into the legality of awarding such a contract
without a bid. The Municipality led it to believe that the extension agreement was
lawful. Even du ring the invalidity proceedings, it was the Municipality that had
requested it to continue providing the security services. As a result, submits Bravospan,
the Municipality acted in bad faith and its conduct was unfair. On the other hand, it
contracted with the Municipality in good faith and in an honest manner. Despite the
invalidity of the exten sion agreement, justice and equity dictate that it should be
compensated for the services it provided to the Municipality. Thus, Bravospan submits
that the Supreme Court of Appeal was entitled to make an order for compensation under
section 172(1)(b).
Analysis
Jurisdiction
[32] In terms of section 167(3)(b)(i) of the Constitution, this Court has the power to
decide constitutional matters. This case concerns a claim for compensation based on
the delivery of services pursuant to the extension of a n agreement between the
Municipality and Bravospan that was later declared invalid.
[33] The issue raised in this application is not about the validity of the contract. That
has already been decided. The question before us concerns whether the Supreme Court
of Appeal was correct of its own accord to overturn the High Court’s finding on
unjustified enrichment and, instead, utilise section 172(1)(b) of the Constitution as the
basis to found liability for compensation in separate proceedings from those in which
the contract was declared invalid. That is a constitutional issue relating to the
interpretation and application of a constitutional provision and, therefore, engages our
jurisdiction.
BILCHITZ AJ
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Leave to appeal
[34] It is trite that this Court will only grant leave to appeal when it is in the interests
of justice to do so. 14 That enquiry is a broad test involving the balancing of several
considerations including, but not limited to, the public interest in hearing the matter and
the importance of the issues raised. 15 This Court will also consider whether the issues
before it have been properly identified, framed and ventilated, allowing for the
rendering of an authoritative decision that takes account of all the relevant dimensions
it must consider.16
[35] The central question that is the subject of this appeal relates to whether
section 172(1)(b) can be a self-standing basis for awarding compensation in separate
proceedings to t hose in which a contract was declared invalid in terms of
section 172(1)(a) of the Constitution.17
[36] That question arises only as a result of the decision of the Supreme Court of
Appeal to go beyond the two grounds of appeal which it dismissed. In this regard, the
Supreme Court of Appeal briefly considered and rejected the finding of the High Court
that compensation could be awarded on the basis of unjustified enrichment. Instead,
the Supreme Court of Appeal, mero motu , developed an alternative basis to awa rd
compensation rooted in section 172(1)(b) of the Constitution. Prior precedent supports
the right of a court to raise a legal issue mero motu where it considers an error of law to
have been made.18
14 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) ( Boesak) at para 12. See also
Minister of Finance v Afribusiness NPC [2022] ZACC 4; 2022 (4) SA 362 (CC); 2022 (9) BCLR 1108 (CC)
(Afribusiness) at para 20 and Road Traffic Management Corporation v Waymark (Pty) Ltd [2019] ZACC 12; 2019
(5) SA 29 (CC); 2019 (6) BCLR 749 (CC) (Waymark) at para 28.
15 Afribusiness id; Waymark id; and Steenkamp above n 2.
16 Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd [2007] ZACC 2; 2007 (5) BCLR 453 (CC); 2008
(4) SA 16 (CC) at para 6. See also the cases referred to in n 38.
17 We are concerned in this case with a “self -review” by a municipality of its own conduct. This Court has held
that such a review must be conducted in terms of the principle of legality and hence section 172 of the Constitution
is applicable to relief in this regard: see State Information Technology Agency SOC Ltd v Gijima Holdings (Pty)
Ltd [2017] ZACC 40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC) (Gijima).
18 This is an incident of the principle of legality: see, for instance, CUSA v Tao Ying Metal Industries [2008]
ZACC 15; 2009 (1) BCLR 1 (CC); 2009 (2) SA 204 (CC) at para 68; and Quartermark Investments (Pty) Ltd v
BILCHITZ AJ
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[37] Nevertheless, as has been made clear by this Court, the Constitution envisages
one system of law19 and does not seek to replace the entire edifice of the common law
with separate constitutional actions.20 Section 173 of the Constitution recognises the
inherent power of superior courts to develop the common law . Moreover, in terms of
section 39(2) of the Constitution , when developing the common law, courts are
obligated to promote the spirit, purport and objects of the Bill of Rights. 21 In
Carmichele,22 this Court recognised that “ under the Constitution there can be no
question that the obligation to develop the common law with due regard to the spirit,
purport and objects of the Bill of Rights is an obligation which falls on all of our courts
including this Court”.23
[38] The Constitution recognises that the common la w we inhe rited included
elements of significant value whilst also needing to be thoroughly decolonised and
adapted to a modern, diverse and democratic African society. That process is an
ongoing on e and, where relevant, requires a deep interpenetration of constitutional
norms into the common law.24 In transforming the common law, it is important to bear
Mkhwanazi [2013] ZASCA 150; [2014] 1 All SA 22 (SCA) at para 20. This approach was endorsed in Sarrahwitz
v Martiz N.O. [2015] ZACC 14; 2015 (4) SA 491 (CC); 2015 (8) BCLR 925 (CC) at para 31 and more recently,
Miya v Matleko-Seifert 2023 (1) SA 208 (GJ) at para 52. The supremacy of the Constitution also supports raising
constitutional questions mero motu in certain circumstances . Parties must generally be presented with an
opportunity to address the point raised by the court mero motu: see, for instance, Director of Public Prosecutions,
Transvaal v Minister for Justice and Constitutional Development [2009] ZACC 8; 2009 (4) SA 222 (CC); 2009
(7) BCLR 637 (CC) ( Director of Public Prosecutions ) at para 43 and Matatiele Municipality v President of the
Republic of South Africa [2006] ZACC 2; 2006 (5) SA 47 (CC); 2006 (5) BCLR 622 (CC) (Matatiele) at para 68.
19 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South
Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) at para 44.
20 See the recent critique by Boonzaier “Common -Law Avoidance” (2024) 141 South African Law Journal 213
of a “trend” he identifies where the common law is replaced by constitutional law. See also Zitzke “Constitutional
Heedlessness and Over-excitement in the Common Law of Delict’s Development” (2015) 7 Constitutional Court
Review 259 who argues for a balance between what he terms “constitutional heedlessness” and “constitutional
over-excitement”.
21 Where the Constitution applies directly to private parties, the common law may also be developed in terms of
section 8(3) of the Constitution.
22 Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995
(CC).
23 Id at paras 34 and 39.
24 There has been a live academic debate on the success or otherwise of this project as well as its desirability: see,
for instance, Woolman “The Amazing, Vanishing Bill of Rights ” (2007) 124 South African Law Journal 762;
Van der Walt “Normative Pluralism and Anarchy: Reflections on the 2007 Term ” (2008) 1 Constitutional Court
BILCHITZ AJ
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in mind the need to draw on values rooted in South Africa such as ubuntu.25 What
emerges from this Court’s jurisprudence26 and philosophical writings,27 is that ubuntu
requires acting in ways that promote harmonious relationships and co -operation with
others. That value is of importance not only in the context of public law but also private
law, though there remains much work to be done to develop its implications in the latter
area.28
[39] The Supreme Court of Appeal did not engage with whether the common law
should be developed to address the predicament of contractors such as Bravospan. Yet,
on its face, this case has many of the hallmarks of an unjustified enrichment action.29
Visser writes that “[a] large part of the law of enrichment has to do with reclaiming
transfers made in terms of void contracts or transfers outside the four corners of a valid
contract”.30 Authors who have attempted to systematise enrichment liability in our law
view it as essentially involving the enrichment of one party at the expense of another
party who is impoverished in a manner that is unjustified or without legal cause.31
Review 77; and Klare and Davis “Transformative Constitutionalism and the Common and Customary Law” (2010)
26 South African Journal on Human Rights 403.
25 S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at paras 305 -7. See also
Victor J’s judgment in Beadica 231 CC v Trustees for the time being of the Oregon Trust [2020] ZACC 13; 2020
(5) SA 247 (CC); 2020 (9) BCLR 1098 (CC) (Beadica) at para 212.
26 Makwanyane id at paras 263 and 307. See also Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty)
Ltd [2011] ZACC 38; 2012 (1) SA 256 (CC); 2012 (3) BCLR 219 (CC) at para 71 and Dikoko v Mokhatla [2006]
ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (Dikoko) at para 68.
27 Tutu No Future Without Forgiveness (Ebury Publishing, London 1999) at 31 and 35, explains “Ubuntu – [s]ocial
harmony is for us the summum bonum – the greatest good. Anything that subverts or undermines this sought-after
good is to be avoided like the plague.” See also Metz “Ubuntu as a Moral Theory and Human Rights in South
Africa” (2011) 11 African Human Rights Law Journal at 537-541; Cornell and Muvangua Ubuntu and the Law:
African Ideals and Postapartheid Jurisprudence (Fordham University Press, New York 2012) and Tamale
Decolonisation and Afro-Feminism (Daraja Press, Ottawa 2020) at 229-230.
28 See Beadica n 25 at paras 72-8 and 206-216. See also Bennett “An African Doctrine of Equity in South African
Public Law” (2011) 57 Loyola Law Review 709 at 717 and 720.
29 For a similar case where unjustified enrichment law was applied, see Mangaung Metropolitan Municipality v
Maluti Plant Hire [2017] ZAFSHC 55.
30 Visser Unjustified Enrichment (Juta & Co Ltd, Cape Town 2008) at 7. Indeed, the condictio ob turpem vel
iniustam causa is an enrichment action that encompasses specifically transfers made pursuant to an illegal
agreement (see Du Plessis The South African Law of Unjustified Enrichment (Juta & Co Ltd, Cape Town 2012)
at 197-8).
31 Visser id at 8; Du Plessis id at 24; and Sonnekus Unjustified Enrichment in South Africa Law (LexisNexis,
2008) at 4.
BILCHITZ AJ
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[40] For a cause of action rooted in unjustified enrichment to be successful in a case
such as the present, we would need to consider developing the common law and address
a number of important legal questions on which there has been much academic
discussion in recent years. These include, for instance, whether the applicable specific
condictiones (enrichment actions) could be extended to apply in circumstances where
services (and not money or goods) were delivered ;32 and, potentially, whether it is
desirable to develop the common law to recognise a general enrichment action, which
was contemplated but not effected in McCarthy.33 For present purposes, I merely point
out that the common law of unjustified enrichment, either in its pre-constitutional form
or duly developed in accordance with sections 39(2) and 173 of the Constitution,34 may
well be capable of accommodating an innocent contractor in the position of Bravospan.
To adjudicate on this question , s uch an innocent contractor would have to bring a
properly pleaded claim to be compensated for the a mount by which its performance
pursuant to an invalid contract has enriched the organ of state that received its services.
[41] Crucially, Bravospan, at no point, cross -appealed against the finding of the
Supreme Court of Appeal relating to unjustified enrichm ent – and so that matter is not
properly before us. As a result, n o written argument was presented by counsel on the
important questions raised above relating to the development of the common law of
unjustified enrichment. We also lack the benefit of any in-depth reasoning both in the
High Court and the Supreme Court of Appeal in this regard. Ordinarily, this Court has
held that, when developing the common law , it should have the benefit of judgments
from the High Court and the Supreme Court of Appeal. 35 For these reasons, it is not
32 Visser id at 222 -5; Du Plessis id at 63 -5; and Scott “Transforming the South African Law of Unjustified
Enrichment” (2017) 25 Restitution Law Review 29 at 6.
33 McCarthy Retail Ltd v Shortdistance Carriers CC [2001] ZASCA 14; [2001] 3 All SA 236 (A). There are a
range of views from academics about the desira bility or otherwise of such a development and how it should be
effected: see, for instance, Visser id at 60; Du Plessis id at 6–10; Sonnekus above n 31 at 29-31; Evans-Jones and
Fischer “Unjustified Enrichment’s Evolution in Mixed Legal Systems: Confronting McCarthy Retail Ltd” (2019)
Acta Juridica 395 and Serfontein “What is Wrong with Modern Unjustified Enrichment Law in South Africa”
(2015) 48 De Jure 388 at 394-401.
34 See Scott above n 32 for some other ways in which the Constitution might impact on unjustified enrichment
law.
35 Amod v Multilateral Motor Vehicle Accidents Fund [1998] ZACC 11; 1998 (4) SA 753 (CC); 1998 (10) BCLR
1207 (CC) at para 33; Carmichele above n 22 at para 41.
BILCHITZ AJ
17
open to us to examine whether developing the common law could potentially offer the
most appropriate avenue for an underlying cause of action in cases such as the present
one (nor would it be desirable).
[42] Instead, we are being invited to ignore the potential relevance of the common
law, and recognise a separate , direct constitutional cause of action rooted in
section 172(1)(b) of the Constitution , in the manner developed by the Supreme Court
of Appeal to address the injustice that would result from denying Bravospan a claim.
In my view, w e should not accept that invitation. Our courts have an obligation to
develop the common law, and such an approach is particularly relevant to the realm of
public procurement. When they enter into contracts, organs of state are bound by public
law duties but also engage in relationships which exhibit features that are generally
regulated by the domain of private law. As a result, public procurement law straddles
the boundary between public and private law. 36 The Constitution enjoins us to
harmonise these different domains and allow them mutually to enhance one another.37
[43] The common law of unjustified enrichment may be capable of development in
light of constitutional imperatives to cover cases such as the present. At the same time,
the development of constitutional law in these circumstances may also benefit from an
engagement with the accrued wisdom of the common law. Unfortunately, the way this
case unfolded in the lower courts means that, if we grant leave to appeal, we are placed
in the untenable position to make an authoritative pronouncement with far -reaching
implications with only an incomplete and partial view of the legal possibilities available.
It is, therefore, not in the interests of justice for us to grant leave to appeal.38
36 See Shabangu v Land and Agricultural Development Bank of South Africa [2019] ZACC 42; 2020 (1) SA 305
(CC); 2020 (1) BCLR 110 (CC) at para 22. See also Quinot “Worse than Losing a Government Tender: Winning
It” (2008) 19 Stellenbosch Law Review 101 at 119-120.
37 Such an approach was suggested by Froneman J in AllPay Consolidated Investment Holdings (Pty) Ltd v Chief
Executive Officer, of the South African Social Security Agency [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6)
BCLR 641 (CC) at paras 29 and 67.
38 This Court has on several occasions in the past refused leave to appeal on grounds that the issues have not been
adequately framed or argued: see, for instance, Sali v National Commissioner of the South African Police Service
[2014] ZACC 19; [2014] 9 BLLR 827 (CC); 2014 (9) BCLR 997 (CC) at para 96; Radio Pretoria v Chairperson
of Independent Authority of South Africa [2004] ZACC 24; 2005 (3) BCLR 231 (CC); 2005 (4) SA 319 (CC) at
BILCHITZ AJ
18
[44] The disagreement with my Colleague Chaskalson AJ (second judgment) is a
narrow but important one. I cannot agree that the primary reason for r efusing leave to
appeal can be that the outcome achieved through doing so accords with a judge’s sense
of justice. This is particularly so where the reasoning in the lower courts for reaching
that outcome is the very basis of the appeal. Indeed, that is precisely the situation in
this case: the grounding for this appeal by the Municipality is a challenge to the
reasoning of the Supreme Court of Appeal to award compensation to Bravospan on the
basis of section 172(1)(b) of the Constitution. To affirm the outcome of the Supreme
Court of Appeal judgment but not to engage with its reasoning – and the desirability or
otherwise of this Court doing so – fails to grapple with the very basis of the leave to
appeal application, which is that the result could not be reached in a legally justifiable
way.39
[45] I have grave reservations about interpreting the “interests of justice ” test for
leave to appeal to grant this Court a free -standing discretion to make ad-hoc decisions,
on the basis that it approves of the outcome of refusing leave. The second judgment
quotes the approach adopted in Fraser40 as support for its approach. In my view, Fraser
should only be applied in very limited circumstances, if at all – otherwise, it opens the
door for judges to decide the substantive outcome of a case without adequate reasoning,
paras 21-3; Shaik v Minister of Justice and Constitutional Development [2003] ZACC 24; 2004 (3) SA 559 (CC);
2004 (4) BCLR 333 (CC) at para 33.
39 In the late 1990s, there was a well -known debate in academic journals about the virtues or vices of judicial
minimalism: see Currie “Judicial Avoidance” (1999) 15 South African Journal on Human Rights 138 and
Roederer “Judicious Engagement: Theory, Attitude and Community” (1999) 15 South African Journal on Human
Rights 486. This debate drew heavily on the work of Sunstein “Foreword: Leaving Things Undecided” (1996)
110 Harvard Law Review 4, who launched a defense of decisional minimalism and described it as “the
phenomenon of saying no more than necessary to justify an outcome, and leaving as much as possible undecided”.
Without re-opening this debate, I wish to indicate that even on the definition of minimalism provided by Sunstein,
judges must provide the reasons that are necessarily required to reach a decision. Prof Stu Woolman, who sadly
recently passed away, captures the strength of the case against judicial avoidance – and the harm it causes to the
rule of law and the Constitution – in his seminal contribution , Woolman The Selfless Constitution:
Experimentalism and Flourishing as Foundations of South Africa’s Basic Law (Juta, 2013) at 28-30. For the
reasons given in the text, in my view, the fact that the judges approve of the outcome of the case is not a sufficient
basis for refusing leave to appeal, particularly where the reasoning in the lower courts for reaching that outcome
is the very basis of the appeal.
40 Fraser v Naude [1998] ZACC 13; 1998 (11) BCLR 1357 (CC); 1999 (1) SA 1 (CC).
BILCHITZ AJ
19
representing a major widening of unguided judicial discretion at the leave to appeal
stage. That would be inimical to the culture of justification – a central dimension of the
rule of law – that courts in South Africa are tasked with defending and enacting through
their own practices. 41 Principled legal reasoning is a guard against decision -making
based purely on judicial intuition s about outcomes which may lead to both just and
unjust results. It is perhaps for this reason that the approach adopted in Fraser has not
been applied since 1998. There is no need to resuscitate this troubling precedent to
decide this matter given the settled principles that this Court has adopted in deciding
leave to appeal applications.42
[46] This case is also different to Fraser in several respects. Fraser was concerned
with circumstances where the fundamental rights of a party not involved in the
litigation – a vulnerable child – and their best interests would be seriously affected were
a substantive finding to be made in favour of the father. In those circumstances, the
Court was faced with balancing the interests of a litigant against a vulnerable third party
when considering whether to grant leave to appeal.43
[47] The circumstances in this case are entirely different. There are only two parties
to this litigation and the issue does not concern fundamental rights but compensation
pursuant to a declaration of invalidity. No vulnerable th ird party will be harmed. The
Court is thus duty bound to provide adequate reasons – other than in relation primarily
to achieving a desirable outcome – for why it grants or refuses leave to appeal. I have
sought, in this judgment, to explain why granting leave, in the circumstances in which
this case unfolded, would be undesirable given courts’ substantive duty to develop the
common law, the lack of a cross -appeal and the lack of argument before this Court as
41 See Mureinik “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10 South African Journal on
Human Rights 10 at 32. See also Ackermann J’s comments about the constitutional state in Makwanyane n 25 at
para 165.
42 Cohen “The Jurisdiction of the Constitutional Court” (2021) 11 Constitutional Court Review 1 helpfully
summarises these principles at 42-3.
43 It should be noted that Fraser had wide-ranging consequences both for the father and the child with a minimally
reasoned judgment. It has been noted that this judgment created a manifest injustice to the father in this case: see
Schäfer The Law of Access to Children (LexisNexis, Durban 2007) 80.
BILCHITZ AJ
20
to how the law should optimally unfold in this sphere where several options exist. These
are not merely supplementary reasons – as the second judgment holds – but the primary
grounds on which the leave to appeal application must fail.
[48] This finding has an undesirable consequence – that this Court is not able to
clarify the exact legal basis for awarding compensation to Bravospan. Nevertheless, it
cannot be in the interests of justice to prolong this matter through sending it back to the
High Court for further argument . After almost eight years since Bravospan ceased
providing services to the Municipality, it still has not been paid for its work. No
evidence on the record indicate s that Bravospan was anything other than an innocent
contractor. Despite challenging the validity of the contract, the Municipality requested
that Bravospan continue providing the service s – its refusal to pay for those services
suggests that it sought to acquire the benefit of the services without paying for them.
Indeed, during the hearing, it was pointed out that the same attorneys that launched the
review application requested Bravospan to continue providing its services. Although
they differed on the underlying legal principles, both the Supreme Court of Appeal and
the High Court were agreed that, after close to a decade of waiting, Bravospan should
receive compensation for the services that it provided to the Municipality. It cannot,
therefore, be in the interests of justice to prolong this litigation and delay an award of
compensation any longer.44
[49] Unfortunately, the circumstances of this case are not unique. 45 As Navsa ADP
stated in Govan Mbeki:
44 This case is thus not like Carmichele above n 22 where this Court found that the lower courts had failed to
consider the development of the law of delict and remitted the matter back to the High Court. In that case, both
the legal basis and eventual outcome had to be decided. In this case, remitting the matter b ack to the High Court
would simply delay the inevitable on which all courts that have considered the matter are ad idem: that Bravospan
must be compensated.
45 There are a series of recent cases where courts have ordered the payment of compensation to innoc ent
contractors, who delivered services and were not paid, in the same proceedings in which those courts declared a
contract (or administrative action) invalid: see, for instance, Buffalo City Metropolitan Municipality v Asla
Construction (Pty) Ltd [2019] ZACC 15; 2019 (4) SA 331 (CC); 2019 (6) BCLR 661 (CC ) at para 105; Gijima
above n 17 at para 54; and Sekoko Mametja Incorporated Attorneys v Fetakgomo Tubatse Local Municipality
[2022] ZASCA 28; 2022 JDR 0488 (SCA) at para 15. Where a contractor comes to court and has been involved
in corrupt practices or does not have clean hands, different considerations will apply. In some cases, the contractor
can be non-suited to avoid the abuse of court processes: see Villa Crop Protection (Pty) Ltd v Bayer Intellectual
Property GMBH [2022] ZACC 42; 2023 (4) BCLR 461 (CC) ; 2024 (1) SA 331 (CC) at paras 77-80 and 91 for
BILCHITZ AJ
21
“This case is part of an ever growing, and frankly disturbing, long line of cases where
municipalities and organs of state seek to have their own decisions, upon which
contracts with service providers are predicated, reviewed and overturned, for want of
legality, more often than not after the contracts have run their course and services have
been rendered thereunder.”46
[50] It is clear too that the conduct of municipalities who behave in the way described
by Navsa ADP fails to meet the ethical standards that are expected from all government
bodies exercising public power. Section 195(1) of the Constitution outlines the
democratic values and principles that govern public admi nistration. An important
principle in the present context is that “[a] high standard of professional ethics must be
promoted and maintained ”.47 As has been mentioned, a central value th is Court has
previously identified, with which public authorities must comply, is ubuntu. An ethic
of ubuntu is inconsistent with taking advantage of others and requires conduct that
involves treating everyone with whom one comes into contact, with the utmost respect
in all interactions. This is particularly important in t he relationship between the
government and its citizens48 – and, significantly, that includes the conduct of the
government in relation to innocent contractors with whom it engages. Requesting a
contractor to provide services and then refusing to pay them is a prime example of
unethical conduct.
[51] For these reasons, I find that it is not in the interests of justice to grant leave to
appeal. The practical effect of this find ing is that t he matter is remitted to the
High Court for a determination of the quantum of compensation owed to Bravospan.
the general principles in this regard. In other circumstances, a balance will need to be struck that is fair to all
parties, taking into account both the wrongdoing on the part of the contractor as well as the organ of state: see
Siyangena Technologies (Pty) Ltd v PRASA [2022] ZASCA 149; [2023] 1 All SA 74 (SCA) ; 2023 (2) SA 51
(SCA) at paras 37-46. It is interesting to consider, again, the relationship between this rule of public law and the
older par delictum (equal guilt) rule in private law and its relaxation in Jajbhay v Cassim 1939 AD 537.
46 Govan Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd [2021] ZASCA 34; [2021] 2 All SA
700 (SCA); 2021 (4) SA 436 (SCA) at para 1.
47 Section 195(1)(a) of the Constitution.
48 Joseph v City of Johannesburg [2009] ZACC 30; 2010 (3) BCLR 212 (CC); 2010 (4) SA 55 (CC).
BILCHITZ AJ / CHASKALSON AJ
22
Costs
[52] Bravospan has requested that , in the event of a result in its favour, this Court
award it costs, including the costs of two counsel, both in the Supreme Court of Appeal
and in this Court. The Municipality has not been granted leave to appeal and it also
behaved in a disreputable manner in representing that the extension was lawful,
requesting that services continue to be provided and failing to pay Bravospan. It is
therefore appropriate to award costs against the Municipality. Bravospan is thus entitled
to its costs, including the costs of two counsel, in this Court. Since leave to appeal was
not granted and Bravospan did not cross -appeal, the costs order in the Supreme Court
of Appeal cannot be interfered with.
Order
[53] The following order is made:
1. Leave to appeal is refused.
2. The applicant is ordered to pay the respondent’s costs in this Court ,
including the costs of two counsel.
CHASKALSON AJ (Madlanga J, Majiedt J, Mhlantla J, Theron J and Tshiqi J
concurring):
Introduction
[54] I have had the pleasure of reading the judgment of my Colleague Bilchitz
(first judgment). I agree that this application for leave to appeal must be dismissed
because it is not in the interests of justice for leave to appeal to be granted. I reach this
conclusion on grounds that are similar to those of my colleague. However, I prefer to
emphasise different considerations.
CHASKALSON AJ
23
Leave to appeal and the interests of justice
[55] The essential facts of this matter are set out in the first judgment. Those facts
show that the Municipality has behaved unconscionably. The Municipality wrongly
assured Bravospan that it cou ld lawfully extend the contract without a new tender
process. It accepted services from Bravospan under the extended contract without
paying for these services. After it launched its review application, it induced Bravospan
to continue providing services under the extended contract while the review application
was pending. It took the benefit of those services. Yet, it still failed to pay Bravospan
for the services. When the Municipality’s review application was successful, it resisted
Bravospan’s action for compensation for the services that it had provided. It did so on
the basis of technical defences and without calling a single witness at trial to answer
Bravospan’s case on the merits.
[56] It is now more than nine years since the Municipality stopped paying Bravospan
for services from which it was benefiting and that Bravospan was providing at its
repeated requests. It is certainly not in the interests of justice to allow the Municipality
to continue to avoid paying Bravospan fairly for the services t hat it has taken from
Bravospan. The effect of the judgment of the Supreme Court of Appeal is that
Bravospan will finally receive just and equitable compensation for these services once
the amount of such compensation has been determined in a hearing befo re the
High Court. That outcome is plainly in the interests of justice. In my view, that should
be the beginning and end of this application for leave to appeal.
Analysis
[57] This Court grants leave to appeal only when it is in the interests of justice to d o
so.49 While reasonable prospects of success are a necessary requirement for an
application for leave to appeal, they are not decisive. 50 More than 25 years ago, this
49 Section 167(6) of the Constitution.
50 Phumelela Gaming & Leisure Limited v Gründlingh [2006] ZACC 6; 2006 (8) BCLR 883 (CC); 2007 (6) SA
350 (CC) at para 24 and Boesak above n 14 at para 12.
CHASKALSON AJ
24
Court explained in Fraser51 that substantive issues relevant to the interests of justice
may sometimes require the refusal of leave to appeal even in cases where the appeal has
reasonable prospects:
“The Constitution requires that provision be made for a litigant to appeal to this Court
against the decision of any other court, ‘when it is in the interests of justice and with
leave of (this) Court’. The prospects of success are obviously an important issue in
deciding whether or not to grant leave to appeal. But they are not the only issue to be
considered when the interests of justice are being weighed.
. . .
The matter must now be brought to an end. Accordingly, even if it could be shown that
there were reasonable prospects of success in respect of the complicated procedural
and jurisdictional issues that have been raised (and we express no opinion thereon), it
is not in the interests of justice that a further appeal should be heard on them. In these
circumstances no purpose would be served by setting down the application for leave to
appeal and direct access to debate the issues that have been raised. The applications
must therefore be refused.”52
[58] Fraser was a case where the best interests of a minor child required an end to
proceedings. So, the interests of justice precluded the grant of leave to appeal even if
the applicant had reasonable prospects of success on the merits. The present case does
not involve the best interests of a minor child. Nevertheless, the logic of Fraser applies
to this application for leave to appeal.
[59] The judgment of the Supreme Court of Appeal will ensure that , after close to a
decade of waiting, Bravospan will finally receive just and equitable compensation for
the services that it has provided to the Municipality. That is plainly in the interests of
justice. To grant leave to appeal would delay compensation further. That would be
contrary to the interests of justice. Therefore, leave to appeal should be refused.
51 Fraser above n 40.
52 Id at paras 7-10 (footnotes omitted).
CHASKALSON AJ
25
[60] There are additional reasons why the interests of justice support the dismissal of
the application for leave to appeal on this narrow basis. First, such an approach will
send a clear message to the Municipality and other organs of state that they must pay
for services that are provided to them by an innocent contractor. This is not a case
where there is any pleaded allegation, still less evidence, of corruption or other
wrongdoing on the part of Bravospan that would justify the Municipality’s refusal to
pay it. Instead, the Municipality is opportunistically raising its own irregular conduct
to avoid paying Bravospan. As is clear from [49] of the first judgment, the
Municipality’s unconscionable conduct in the present case is part of a broader
phenomenon of organs of state seeking to rely on their own unlawful conduct to avoid
compensating innocent contractors for services that those contractors have provided to
them. This Court must make clear that conduct of this sort will not be tolerated.
[61] Second, there are good reasons of legal policy not to address the Municipality’s
prospects of success. In order to address prospects of success, it would be necessary to
consider the relationship between section 172(1)(a) and (b) of the Constitution. That
relationship raises complicated issues of constitutional law and legal policy. This Court
should not express itself unnecessarily on these issues unless it is confident that it can
do so without potentially causing problems for the disposition of different matters
involving these issues in the future.53 I have no such confidence.
[62] Moreover, the peculiarities of the pleading of the present case at trial and on
leave to appeal to this Court make it a particularly unsuitable case for pronouncing on
both the general relationship between section 172(1)(a) and (b) and the scope for
53 In Zantsi v Council of State, Ciskei [1995] ZACC 9; 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC) (Zantsi)
at para 2, this Court quoted with approval the following injunction of the United States Supreme Court in
Liverpool, New York and Philadelphia Steamship Co v Commissioners of Emigratio n 113 US 33 (1885) at 39:
“(N)ever . . . anticipate a question of constitutional law in advance of the necessity of deciding
it; . . . never . . . formulate a rule of constitutional law broader than is required by the precise
facts to which it is to be applied.”
In the three decades since Zantsi, this Court has adopted a less cautious approach to constitutional adjudication.
(See for example Jordaan v Tshwane MM [2017] ZACC 31; 2017 (6) SA 287 (CC); 2017 (11) BCLR 1370 (CC)
at paras 6-8). However, it remains sound policy of constitutional adjudication for this Court not to determine new
issues of constitutional law unnecessarily, unless it is confident that it can do so without creating unanticipated
problems in future cases raising similar issues.
CHASKALSON AJ / DODSON AJ
26
equitable relief to be granted under section 172(1)(b) in proceedings other than those in
which a section 172(1)(a) order has been handed down. Before enshri ning a
section 172(1)(b) remedy of the sort created by the Supreme Court of Appeal judgment,
this Court would have to consider whether the purpose served by such an individualised
damages remedy could better be accommodated under a constitutionally develop ed
common law enrichment action. As a result of Bravospan’s pleading of its claim in the
present matter and its failure to cross appeal against the order of the
Supreme Court of Appeal, this issue was not canvassed in the proceedings before us.54
Conclusion
[63] For the reasons set out above, this application for leave to appeal must be
dismissed and I support the order proposed in the first judgment. Even if the
Municipality were to have had reasonable prospects of success in relation to the
complicated remedial issues that it raises regarding section 172 of the Constitution (and
I express no views thereon), on the facts of this case, the interests of justice preclude
the grant of leave to appeal.
DODSON AJ:
[64] I have had the benefit of reading the well-reasoned judgments of my Colleagues
Bilchitz AJ (first judgment) and Chaskalson AJ (second judgment). I agree with the
conclusion reached in both judgments that it is not in the interests of ju stice to grant
the Municipality leave to appeal.55 I agree with the order in the first judgment, including
the order as to, and the reasons for, costs.56 I adopt the setting out in the first judgment
54 A similar point is made at [36] to [43] of the first judgment. I do not express any views as to the scope of a
properly pleaded cons titutionally developed common law enrichment action to accommodate contractors who
find themselves in the position of Bravospan. I merely note that this is an issue that this Court would want to
explore before deciding to enshrine a free standing section 172(1)(b) remedy.
55 See the first judgment at [51] and the second judgment at [63].
56 See the first judgment at [52] to [53].
DODSON AJ
27
of the background to the matter, the litigation history and the parties’ submissions.57 I
agree with the finding that this Court has jurisdiction.58
[65] As far as the reasoning on issues other than costs is concerned, I agree with each
judgment in part and disagree in part. I agree with the reasons given in the first
judgment for holding that it is not in the interests of justice to grant leave to appeal. 59
However, I do not associate myself with the questioning in the first judgment of the
correctness of Fraser.60 I would not venture down the obiter (in passing) path that the
first judgment does in relation to the possible development of an enrichment act ion to
provide for cases like the present one. 61 Nor would I do so in relation to the possible
development of a cause of action based on section 195 of the Constitution and the value
of ubuntu, as the first judgment seems to foreshadow.62
[66] The second judgment finds that it is in the interests of justice to refuse leave to
appeal because doing so leaves in place a just outcome. 63 The first judgment criticises
this understanding of the interests of justice on the grounds that this amounts to
decision-making based on a judge’s sense of justice, not a legal reasoning process. 64 I
agree with this criticism.
[67] I agree with the “additional reasons” given in the second judgment for refusing
leave to appeal, pertaining to the message it sends to municipalities and other organs of
state to pay for services provided by an innocent contractor, and the inappropriateness
57 See the first judgment at [1] to [31].
58 See the first judgment at [33].
59 See the first judgment at [34], [41] and [48].
60 See the last sentence of para [45] of the first judgment and Fraser above n 40.
61 See the first judgment at [38] to [40] and [43].
62 See the first judgment at [50].
63 See the second judgment at [56] to [59].
64 See the first judgment at [44] to [45].
DODSON AJ
28
of a decision in this case on the relationship between section 172(1)(a) and (b) of the
Constitution.65
[68] It is on the above basis that I concur in the order to be granted.
65 See the second judgment at [60] to [62].
For the Applicant:
For the Respondent:
A P J Els and T M Malatji
Instructed by Maloka Sebola Attorneys
Incorporated
I Hussain SC and N J Tee
Instructed by MED Attorneys
Incorporated