NMPS Construction CC and Others v Minister of Public Works & Infrastructure and Others (84/2022) [2024] ZAECBHC 27 (15 October 2024)

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[2024] ZAECBHC 27
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NMPS Construction CC and Others v Minister of Public Works & Infrastructure and Others (84/2022) [2024] ZAECBHC 27 (15 October 2024)

IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– BHISHO]
CASE NO.: 84/2022
In the matter between:
-
NMPS
CONSTRUCTION CC
1
ST
APPLICANT
LONI’S
BUILDING CONSTRUCTION CC
2
ND
APPLICANT
LZ
SIDZIYA AND SONS CONSTRUCTION
3
RD
APPLICANT
GQOBA
CONSTRUCTION CC
4
TH
APPLICANT
LINDA
SDULI CONSTRUCTION CC
5
TH
APPLICANT
MEKI
CONTRACTORS CC
6
TH
APPLICANT
SNO’S
BUILDING CONSTRUCTION CC
7
TH
APPLICANT
TAU
ETSHEHLA CONTRACTORS
8
TH
APPLICANT
TPSK
BUILDERS CC
9
TH
APPLICANT
PAMMY
CONSTRUCTION CC
10
TH
APPLICANT
INKI
CONSTRUCTION CC
11
TH
APPLICANT
AMATENZA
CONTRACTORS
12
TH
APPLICANT
HARVERST
TIME DEVELOPERS CC
13
TH
APPLICANT
RES-DELIGHT
PROJECTS CC
14
TH
APPLICANT
MANDLANGANGENDLOVU
CONTRACTORS CC
15
TH
APPLICANT
MTHESA
BUILDERS CC
16
TH
APPLICANT
FUNEZAKHO
CONSTRUCTION CONTRACTORS CC
17
TH
APPLICANT
LETSHEPA
BUILDING CONTRACTORS CC
18
TH
APPLICANT
SIYAGQWESA
CONTRACTORS CC
19
TH
APPLICANT
MBUCWA
CONTRACTORS CC
20
TH
APPLICANT
KHONJWAYO
CONTRACTORS CC
21
ST
APPLICANT
PUMINO
CONSTRUCTION CC
22
ND
APPLICANT
IZINKWALI
BUILDING CONSTRUCTION AND CIVIL CC
23
RD
APPLICANT
QHOLO
CIVILS CC
24
TH
APPLICANT
HOB
CONSTRUCTION CC
25
TH
APPLICANT
NGALEKA
BROTHERS CONSTRUCTION CC
26
TH
APPLICANT
VETO
CONSTRUCTION CC
27
TH
APPLICANT
LZG
CONSTRUCTION CC
28
TH
APPLICANT
LAMILA
CONSTRUCTION CC
29
TH
APPLICANT
NDZAMELA
CONSTRUCTION CC
30
TH
APPLICANT
ZILWA
CONTRACTORS CC
31
ST
APPLICANT
GT
MAJIYA CONSTRUCTION CC
32
ND
APPLICANT
GAMSKO
CONSTRUCTION CC
33
RD
APPLICANT
DLAMBULO
CONSTRUCTION CC
34
TH
APPLICANT
MNCEDUMNTU
PROSPER SIGABI
35
TH
APPLICANT
TEMBUKAZI
PAKADE
36
TH
APPLICANT
LINDUMZI
SIDIYA
37
TH
APPLICANT
MZIYANDA
GQOBA
38
TH
APPLICANT
BUYELWA
MAYEKISO
39
TH
APPLICANT
SIPHELELE
MEKI
40
TH
APPLICANT
MAYENZEKE
FAKU
41
ST
APPLICANT
MOLEBOHENG
TSOANANYANA
42
ND
APPLICANT
SIBONGILE
KHAMBILE
43
RD
APPLICANT
PAMELLA
DYANTYI
44
TH
APPLICANT
FUNEKA
MGOBOZI
45
TH
APPLICANT
LITHA
ZITSHU
46
TH
APPLICANT
SIVIWE
DLOVA
47
TH
APPLICANT
VUYO
NDLEBE
48
TH
APPLICANT
MLINDELI
NOGEMANE
49
TH
APPLICANT
MTHETHO
SANDA
50
TH
APPLICANT
ZUKO
MAZWI
51
ST
APPLICANT
THEMBA
MJIBA
52
ND
APPLICANT
LOMBE
SEMANE
53
RD
APPLICANT
THEMBISA
SIDINILE
54
TH
APPLICANT
LUYANDA
MBALEKWA
55
TH
APPLICANT
PHUMELA
TAFA
56
TH
APPLICANT
LOYISO
METU
57
TH
APPLICANT
XOLANI
FINCA
58
TH
APPLICANT
BONGEKILE
DLEKEDLA
59
TH
APPLICANT
ATHI
MTENGWANE
60
TH
APPLICANT
XOLANI
TSHWATI
61
ST
APPLICANT
LUZUKO
GWAZELA
62
ND
APPLICANT
NOSIPHO
MSIMANGA
63
RD
APPLICANT
MONGEZI
NDZAMELA
64
TH
APPLICANT
MKHANGELI
ZILWA
65
TH
APPLICANT
GUGULETHU
MAJIYA
66
TH
APPLICANT
ZOLA
BULWANA
67
TH
APPLICANT
LUNGILE
DLAMBULO
68
TH
APPLICANT
And
MINISTER
OF PUBLIC WORKS & INFRASTRUCTURE
1
ST
RESPONDENT
MEC
FOR PUBLIC WORKS OF THE EASTERN
CAPE
PROVINCE
2
ND
RESPONDENT
MEC
FOR EDUCATION OF THE EASTERN
CAPE
PROVINCE
3
RD
RESPONDENT
COEGA
DEVELOPMENT CORPORATION (PTY) LTD
4
TH
RESPONDENT
JUDGMENT
NORMAN J:
[1]
The applicants sought in their amended notice of motion the following
Orders:
“
1.
That the respondents are ordered to implement
Phase 3 of the Eastern Cape School Building Expanded Public Works
Programme
which they had
initiated in favour of the applicants, which is the final phase of
that programme, which will enable the Construction
Sector Education
and Training Authority (CETA) to award the NQF Level 2 to the
applicants.
2.
That the respondents are ordered to commence with the implementation
of this
order within thirty (30) days of the granting of this order.
3.
That the respondents are ordered to report to this Honourable Court
on the steps
taken to comply with this order by submitting a progress
report on the last day of every month after the granting of this
order
until the applicants are satisfied that the order has been
fully complied with and that
continued
reporting
may be concluded by an
order of this Honourable Court on application by the applicants.
4.
That the first, second and third respondents are ordered to pay the
costs of
this application on an attorney and client scale jointly and
severally the one paying the other to be absolved.
5. Further and/
alternative relief.”
Parties
[2]
The applicants, in the founding affidavit, deposed to by Mr
Mncedumntu Prosper Sigabi,
are described as trainee contractors under
what was known as the Expanded Public Works Program (EPWP). This
program was introduced
by the first and second respondents. The first
respondent is the Minister of Public Works and Infrastructure (the
Minister) who
is cited in his official capacity as the executive
authority of the national department of public works.
[3]
The second respondent is the Member of the Executive Council for
Public Works for
the Eastern Cape Province ( the MEC for Public
Works) , the executive authority of the provincial department. The
third respondent
is the Member of the Executive Council for Education
for the Eastern Cape Province (MEC for Education), the executive
authority
of the provincial department of education. The fourth
respondent is the Coega Development Corporation (Pty) Ltd (Coega),
the
implementing agent
of the
learnership program that is the subject of these proceedings.
[4]
The applicants brought the
application in their individual capacities; also acting as members of
an interest group or class of persons;
acting in the public interest,
and in their capacities as business entities as envisaged in sections
38(a); 38(b) section and 38(d)
of the Constitution, respectively.
[5]
I hasten to state that the applicants initially withdrew the
application against Coega
but later joined it in these proceedings at
the instance of the second and third respondents who complained about
the non-joinder
of Coega. No relief is sought against Coega.
[6]
The application is opposed by the state respondents. Coega’s
opposition relates
to costs only as they had not been tendered by the
applicants at the time of withdrawal of the application against it.
The program
[7]
The applicants were recruited for the purposes of developing
them
to
become well equipped contractors. They state that the
program was to be implemented in three (3) phases of training in
order to
enable the applicants to achieve NQF Level 2 accreditation.
They complain that the training was abruptly, unilaterally and
arbitrarily
discontinued by the respondents and thus caused them
prejudice.
[8]
It is common cause that on 14 February 2003 the former President of
the Republic of
South Africa, President Thabo Mbeki when he was
delivering his annual State Of The Nation Address (SONA) during the
opening of
Parliament stated,
inter alia
, the following:
“
To
address this investment in social infrastructure, the government has
decided that we should launch
an
expanded
public works programme. This will
ensure that we draw
significant
number of the unemployed into productive work and that these workers
gain skills while they work, and thus take an important
step to get
out of the pool of those who are marginalized.”
[9]
It was a result of that address that in June 2004 the first
respondent issued a consolidated
program overview and a framework
document for the implementation of the EPWP. The first respondent is
quoted by the applicants
as having stated the following:
“
President
Thabo Mbeki formally announced the EPWP in his State of the Nation
Address in February 2003. The program was agreed to
at the Growth and
Development Summit in (GDS) held in June 2003. Cabinet finally
adopted the program in November 2003 and the President
launched the
program in May 2004.”
[10]
On 11 April 2005 an advertisement from the Independent Development
Trust (IDT) entitled ‘Expression
of Interest Eastern Cape
Schools Body Expanded Public Works Program’, appeared in the
Daily Dispatch. It reads as follows:
“
EXPRESSION
OF INTEREST
Eastern Cape School
Building Expanded Public Works Programme
Background
The Independent
Development Trust, on behalf of the Provincial Department of Public
Works and Education is embarking on a contractor
training programme
that is part of the Expanded Public Works Programme. The programme is
structured as a learnership and is a joint
initiative between DPW
(EC), DOE (EC), DPW (NATIONAL), CETA and the IDT. The programme
attempts to enhance the ability of the emerging
contractors and the
youth aspiring to get into the construction industry with more future
that will enable them to compete effectively
in the construction
market. It will assist aspiring building contractors to gain skills
while they run projects and increase their
capacity to earn income,
all of which will result in them being fully fledged building
contractors with requisite business and
technical skills.
Selection criteria
(a) Requirements for
applicants
The applying potential
contractor must be willing to form a closed corporation for the
purpose of the learnership and will have
100% ownership of the closed
corporation formed.
Other critical
requirements are the following:
Have
academic qualifications of Grade 10 (Standard 8) or higher
(Applicants with qualifications below Grade 10 should obtain
Recognition
Prior Learning and submit before the closing dates).
Be
willing and available to enter into a fulltime programme and contract
that runs over a period of two years for a construction
Contractor
NQF Level 2.
Preference
will be given to PDI.
In the event that the
total number of applicants who meet the above requirements are less
than the total number of available learnerships,
the Independent
Development Trust, National Department of Public Works, the
Provincial Department of Public Works and the Constructions
Education
and Training Authority Services may shortlist applicants who do not
meet the above criteria, to the learnership programme
following
transparent, objective and credible processes.
(b)
Procurement scorecard – evaluation of applicants
Applicants
will be evaluated according to the following affirmative action
criteria. Empowerment points:
PDI status
SMME
Gender
Disability
Youth
Locality
Capacity
Qualifications
Relevant
experience
NB: In addition to this
and most critical, the following will be considered:
At
least 85% of the selected learners should be historically
disadvantaged individual.
At
least 50% of the selected learners should be women and/or disabled.
At
least 50% of the learners should be youth (35 years and younger).
In the event that the
total number of applicants who meet the above requirements are less
than the total number of available learnership,
the Independent
Development Trust, National Department of Public Works, the
Provincial Department of Public Works and the Constructions
Education
and Training Authority Services may shortlist applicants who does not
meet the above criteria, to the Learnership Programme
following
transparent, objective and credible processes.
(c)
Experience of the applicants
This learnership
programme targets those people, within the affirmative action
framework described above, that will have the best
chances of
succeeding as a small contractor. The following
characteristics of applicants will therefore count i
n their
favour in the selection process:
Experience
in the construction or contracting sector.
experience
in owning or managing a business.
Higher
qualifications than the minimum specified.
Access
or ownership of capital or assets that would be useful for
contracting company.
(d)
Completion of forms
All the forms listed on
the application forms which will be issued on the briefing dates
listed hereunder should be fully completed
or filled in.
Non-completion, fully
filling in or non-submission of these forms will result in
disqualification.
(e)
Written Assessments
Short-listed applicants
will be required to sit for written assessments.
(f)
Selection
Final selection will be
done based on written test results and interviews.
(g)
Compulsory briefing sessions:
The IDT has set aside the
following dates for the briefing sessions to potential learners:
(Dates and venues
omitted herein)
The closing date for the
submission of application forms that will be issued on the dates of
the briefing sessions is 29 April 2005
at 12:00.
Applications shall be
submitted in sealed envelopes and endorsed with: (address given)
(h)
Place of submission: IDT – Mthatha office
Mqondiso
Makupula
Regional Administration
Manager”
[11]
It is common cause that the applicants responded to this
advertisement. They attended the compulsory
briefing sessions at
venues which were closest to them. At those briefing sessions it was
emphasized that successful applicants
would be compelled to avail
themselves on a full-time basis for a minimum period of two years for
the learnership program. Some
of the applicants were employed
teachers who decided to leave their full-time employment to join the
program. The applicants were
also required to register their own
close corporations wherein they would hold 100% interest. Some of
them abandoned their companies
that already had a higher CIDB grading
in order for them to start new close corporations and to work their
way up again to attain
CIDB grading. Successful learner contractors
were expected to sign learner contracts of employment with the first
respondent and
a learnership agreement with the Construction
Education and Training Authority (
CETA)
.
They were also advised during the briefing that a stipend of R50 per
day would be paid to each learner
whilst
they were attending classes for the theoretical part of the training
sessions.
[12]
They were further advised that the learnership program comprised of
three (3) phases which a
learner had to successfully complete in
order for them to be awarded the NQF Level 2 qualification by CETA.
The three (3) phases
were made up of: 30% theoretical training and
70% practical training. Each phase was allocated 10% for theoretical
training and
23.3% for practical training. Only when a learner had
completed all three phases was she or he eligible to be awarded a
certificate
of completion by CETA. The theoretical training was
conducted from Queenstown and Gqeberha. It was when they attended
these training
sessions that each learner would be paid a stipend of
R50 per day. The practical training comprising of 70% of the entire
program
had to be performed through allocation of building
construction projects. The learner contractor was expected to
successfully implement
and complete the allocated project. The
projects were to be provided by the third respondent primarily in the
form of school building
projects throughout the province.
[13]
They stated that
during this practical
component the learner contractors would draw salaries of R15 000
a month during Phase 1 and R30 000
during phase 2 and 3 to
sustain themselves and their businesses. It
was also
emphasized that each of the learners were to open bank accounts with
Absa bank as it had been enlisted to support the program
by extending
overdraft facilities to the learners to assist them in their rollout
of the 70% practical work. They were further
advised that the
learners would be allocated mentors who would provide mentorship
throughout the program especially during the
practical implementation
phases to ensure success.   Phase 2 was completed in
February 2010.  There were various
interactions with officials
of the first to fourth respondents on numerous challenges the
learners experienced in relation to phase
2 and lack of
implementation of phase 3. Those interactions are not disputed.
[14]
The applicants attached to their founding affidavit
two
agreements
.
One agreement is
between the provincial Department of Public Works in Bhisho and Mr
Meki Siphelele. That contract is referred to
as the learner contract
of employment. A confirmatory affidavit from Mr Meki was filed. The
other one is between CETA and Mr Zolani
Soji, which is a learnership
agreement. Applicants rely on both agreements ‘
as
evidence copies of such agreements that were signed by two of the
successful applicants’
.  It
recorded the learnership registration number as ‘
Construction
Contractor NQF 2. 20813
.’  I
shall record some of the terms of the agreement in the learner
contract of employment agreement concluded on 06
March 2006, to the
extent that they are relevant to the issues before me. Those are
clauses 3, 4 and 5.
“
3.
TERMINATION OF CONTRACT
This
contract of employment terminates when
the
learner has completed a learnership or when the learnership agreement
has been cancelled
.”
4.
SHORT TIME
Employment
under a learnership is based on the reasonable expectation of
continuing work availability to the employer for the duration
of the
learnership period, linked to the provisions of the relevant
employment contract.
It
is possible that, for reasons beyond the control of either the
employer or the learner , the continuing availability of work

relevant to the learner may not be available, with the consequence
that contractual work relevant to learner experience requirements
may
not be available.
It
is an express condition of employment that the learner employee may
be placed on unpaid short time for such period as may be
necessary
pending resumption of contract work, provided that the completion
date of the learnership agreement shall be extended
by a similar
period where necessary.
5.
EMPLOYMENT PERIOD
5.1
Commencement date of Employment Contract: (blank)
5.2
Termination date of Employment Contract: Completion of qualification
or termination date of learnership contract, whichever
date is the
later.”
[15]
I shall return to the terms of the agreement of Mr Meki later. The
applicants complain that they
have been fighting for 12 years for the
implementation of phase 3. They relied, amongst others, on the
letters dated 27 September
2013, written by the Director-General (DG)
of the first respondent, Mr Mziwonke Dlabantu, to the CEO of Coega,
Mr Pepi Silinga,
to Mr J. Mlawu , Head of Department of the
provincial department of Public Works; to the Deputy Director –
General: Regions,
Mr B Matutle and to Mr Ngonzo, the Superintendent –
General, provincial department of Education. In each of those letters

the DG emphasized, amongst others, the negative effect that the
incomplete learnership programme was having on the learner
contractors;
failure of the departments to identify adequate
construction and maintenance projects due to budgetary constraints;
and failure
to deliver phase 3. The applicants contend that the
learnership programme consisted of three phases and failure to
implement phase
3 projects renders it incomplete.
[16]
On 10 June 2015, a letter was addressed to the learners by Ms Irene
Nemasetoni: Director EPWP
Enterprise Development, national department
of Public Works wherein she gave feedback to learners on the progress
made in relation
to the implementation of the 3
rd
phase of
the contractor development program. She recorded therein that the DG
for the national Department of Public Works had approved
the
implementation of the 3
rd
phase of the program. She
further recorded that the implementation of the 3
rd
phase
was kept in abeyance due to investigations of allegations of fraud
relating to the implementation of the program. The learners
were
urged to prepare themselves for the program and have their portfolios
of evidence of work or training completed. They were
advised that
upon completion of the investigations the department would
communicate with them on progress and plan of action.
[17]
On 21 December 2015 they attended a meeting with the Minister in East
London at the Premier Hotel
ICC. The deponent was advised by Ms
Abrahams that the fraud investigation had been completed and it was
found that the fraud allegations
were unsubstantiated.  At the
meeting the Minister committed his department to the implementation
of phase 3.  Nothing
happened and on 23 March 2017 the deponent
received communication from the Deputy Director – General of
the national department
of Public Works, Mr Samuel Thabakgale, which
was addressed to Coega. That communication withdrew an allocated list
of projects
that had been submitted to Coega for the Eastern Cape
EPWP. The reason advanced for the withdrawal was due to some of the
department’s
clients, namely, the South African Police
Services, Department of Defence, Department of Correctional Services
and the Department
of Justice, who were delaying in signing off the
budgets for the 2017/2018 financial year.
[18]
The applicants engaged services of RM Sodo Inc. in Mthatha who
addressed letters to the President
of the country requesting his
intervention and assistance. The office of the President referred
them to the Premier of the Eastern
Cape Province.  Their legal
representative contacted the office of the Premier. They were
referred to the Portfolio Committee
on Public Works. All those
efforts came to nought.
[19]
The deponent describes in detail the traumatic experiences they
suffered as a result of the non
– implementation of phase 3.
Their lives were ruined for 16 years. Some of their colleagues died
leaving their families
destitute.  Some had their properties
sequestrated by Absa Bank.  The applicants contend that the 3
rd
phase would enable them to acquire NQF Level 2 qualification. They
stated that a similar incident occurred to the learners in the
North
West Province whose matter was investigated and settled with the
first respondent.
[20]
The applicants relied on the
Biowatch
Trust v Registrar, Genetic Resources and Others
[1]
,
for their contention that  if they are successful the State
should bear their costs and that there should be no costs orders

against them if they are not successful. They contend that it was the
State that provoked the litigation by failing to fulfil its
statutory
duties.  They contend that the matter is constitutional in
nature and is in the public interest. They state that
they have met
all the requirements for a mandamus, namely, a clear right,
reasonable apprehension of harm and absence of other
satisfactory
relief.
They
state that they have been prejudiced by the respondents’
non-compliance with the terms of their commitment to train and
have
them accredited as NQF Level 2 qualified contractors. They further
complain that the democratic principles applicable to public

administration as enshrined in section 195 of the Constitution were
never observed by the respondents.
They contend that they made out a case for the relief sought.
Minister’s
opposition
[21]
The Minister authorized the Deputy Director-General, Ms Carmen-Joy
Abrahams (Ms Abrahams) to
depose to the answering affidavit. She
raised certain points
in limine
, namely, that the applicants
lacked
locus standi
to bring the application as learners were
natural persons and not entities. This point was abandoned during
argument because the
natural persons had since been joined to the
application. The second point in
limine
was the non-joinder of
CETA. The applicants abandoned the relief sought against CETA and
as
a result the second point in
limine
also fell away. T
he third point was that the applicants failed
to make out a case because they failed to prove the material terms of
the contract
relied upon. The applicants’ reliance on the
doctrine of legitimate expectation must fail because they failed to
prove any
reasonable expectation based on a well-established practice
where an expressed promise by an administrator acting lawfully,
was
made
. The Minister further contended that the department is
not a party to any contracts concluded with learners and with learner
contractors
and consequently any rights obtained by the learners and
learner contractors are not enforceable against the department.
[22]
She stated that the duration of the learnership program was for a
period of 2 to 3 years. It
was also envisaged that at the end of the
learnership, the successful learners would obtain an NQF Level 2 new
venture creation
qualification/NVCF4/CC02.
It
is common cause that the learners signed learnership agreements.
The
learnership program consisted of appropriate mix of instructional
learning and structured practical training. The instructional

learning component would be provided through three separate classroom
sessions. The practical component would be provided through
three
separate and independent practical training projects. The program
would be structured as follows: There will be three (3)
stages of
classroom component which would take approximately six to eight (6-8)
weeks each. The practical component consists of
three (3) components
of three to six (3-6) months each.
[23]
It is common cause that the applicants referred to these components
as three (3) phases, whereas
the respondents referred to them as
three (3) stages.  There were 51 learners who were eventually
selected to participate
in the program. The Minister contended that
the
second respondent
was the employer
in terms of the learnership agreements concluded with the learners.
[24]
The first respondent admitted that he only facilitated the selection
process. He referred to
Mr Meki’s agreement as an example of
one of the learnership agreements concluded between the second
respondent and one of
the 51 learners.
[25]
In terms of the Memorandum of Agreement (MOA) between the state
respondents, the national department
of Public Works was responsible,
amongst others, for the provision of guidelines and processes for the
program in terms of the
management plan; to facilitate the selection
process of learners and the appointment of accredited training
providers in consultation
with CETA and the second respondent.
[26]
CETA , as the SETA responsible for the development of skills in the
construction sector as contained
in the MOA had the following
obligations : to allocate sufficient  funds from the Skills
Development Levy for on-site training
projects to the fifty one
learners during the learnership program as contractors capable of
carrying out construction works and
sustainable SMMEs; to appoint a
training provider to facilitate the training of the learners and
together with the department process
payments to the training
providers; ensure that the accredited training providers conduct the
training and that all training is
properly certified; and to
facilitate the implementation of the learnership in a management team
consisting the national and provincial
Departments of Public Works.
[27]
The second respondent in consultation with the third respondent
decided on the projects that
form part of the Eastern Cape school
building projects to be allocated to learner contractors for training
purposes. Coega was
appointed by the second respondent as an
implementing agent to manage the
school
building program and to manage the allocation of projects to learner
contractors.
[28]
The first respondent contends that the school building projects
program have higher contract
values than what Grade 1 and Grade 2
contractors may lawfully perform and higher values than the
department’s recommended
guidelines for
training projects for learner contractors.
As a result, the
project awarded to the learners exceeded the recommended values for
learnership programs. They further contend
that phase 1 ranged
between R1 292 111.00 and R1 658 658.00 and phase 2 ranged
between R1 471 984.00 and R11 174
490.00. Due to budgetary
constraints and unavailability of suitable construction projects in
the schools program, the
third project
could
not be awarded.
[29]
Only two projects instead of three were allocated to each of the
learner contractors. The first
respondent acknowledged the fact that
the learner contractors were unhappy about the non- allocation of a
third project.
They lodged complaints with the Minister, the
Premier as well as with the Public Protector.
[30]
The learner contractors raised various concerns about phase 2 and the
respondent’s failure
to implement the third project. The first
respondent and Mr Dlabantu, prevailed on the second and third
respondents to comply with
their obligations in terms of the MOA.
Several meetings were held with all the stakeholders. At a meeting
held on 07 August 2013
it was resolved that suitable projects from
other programs be identified in order to award the third project to
the learner contractors.
Letters were directed to the second, third
and fourth respondents to identify relevant projects for the third
training project.
[31]
The deponent stated that any reference to phase 3 of the program is a
reference to the third
and
final practical component of the
program
; namely, the last of the three projects to be awarded to
the learner contractors.
[32]
On 27 May 2010 the Chief Director, Mr Ignatius Ariyo, EPWP
Infrastructure Sector wrote to the
National Treasury and sought
approval for the implementation of the Limpopo learnership program
which allows for the allocation
of projects to learners on a
negotiated basis. On 02 June 2010 the Chief Directors: Norms and
Standards, Mr Jan Breytenbach responded
and gave advice in the
following terms:
“
The
Chief Director
EPWP
Infrastructure Sector
Department
of Public Works
Private
Bag X 65
PRETORIA
0001
Attention:
Mr Ignatius Ariyo
Fax:
012 337 3040/012 324 6349
REQUEST FOR
APPROVAL FOR THE ALLOCATION OF PROJECTS AS ON-SITE TRAINING PROJECT
TO EMERGING CONTRACTORS AS PART OF A SETA REGISTERED
LEARNERSHIP
PROGRAMME
1
The letter dated 27 May 2010 has
reference.
2
The National Treasury is in support
of Department of Public Work’s infrastructure learnership
programmes
intended to train emerging contractors and their supervisors to
implement i
nfrastructure
projects
through
labour intensive
methods.
3
Accounting officers and authorities
are empowered in full to procure all goods and services directly in
terms of the Public Finance
Management Act (PFMA) and the Treasury
Regulations.
4
The National Treasury cannot grant
approval to deviate from the prescribed competitive bidding processes
as the Treasury Regulations
already delegates the approval to deviate
from the competitive bidding process to the accounting officer or
authority of an institution.
5
In particular, Treasury
Regulation 16A6.4 makes provision for instances when it would be
impractical to invite competitive bids.
This provision allows
accounting officers or authorities to dispense with the official
procurement processes and to procure services
through any convenient
process, which may include direct negotiations in, among others,
exceptional cases where it is impractical
or impossible to follow the
official procurement processes.
6
The accounting officer or authority
takes full responsibility and accountability for this decision.
Therefore, if and when this
provision is utilized, the reasons for
deviating from inviting competitive bids must be recorded and
approved by the accounting
officer or authority.
7
It is a requirement that accounting
officers or authorities must report within ten working days to the
relevant treasury and the
Auditor-General, all cases where goods and
services above the value of R1million were procured in terms of
Treasury Regulation
16A6.4.
8
It is trusted that this advice is of
help to you. (my underlining)
Kind regards
JAN BREYTENBACH
CHIEF DIRECTOR NORMS
AND STANDARDS
DATE: 2010/06/02”
[33]
On 7 August 2013 a meeting was held with all the relevant
stakeholders.  Thereafter and
on 27 September 2013, the DG
requested the provincial department of Public Works to identify
projects for the allocation of a third
training project to each
learner contractor.  The third respondent was requested to
identify projects for allocation of a
third training project to each
learner and to provide documentation detailing final settlements of
the final accounts on the projects
allocated in phase 2. Similarly,
Coega, was requested to identify projects for the third training
project, to provide reports on
the implementation of the phases 1 and
2 learner assessment reports and to make payment of all outstanding
amounts to the learner
contractors.
[34]
The first respondent highlighted the challenges that were presented
by the allocation of the
training projects without following the
procurement processes. The national department of Public Works
persisted in its efforts
to prevail on the other respondents to
comply with the obligations in terms of the MOA as it had complied
with all of its obligations.
It was working on finding
solutions for the implementation of phase 3. Some of the
interventions were made in 2017 and 2018
where the department
approached the National Bid Adjudication Committee for approval to
refinance projects for allocation to the
learner contractors and to
appoint Coega as the implementing agent. These engagements culminated
in a letter dated 24 May 2021
from the National Treasury where it
expressed support for the award of projects in order to implement the
contractor development
programs under the auspices of the CIDB
framework.
[35]
That support was conditional upon fulfillment
of certain requirements. One of the requirements was that the total
value of the allocation
of projects for the program may not exceed R3
million and must be within the CIDB limits. The allocation should be
under the auspices
of the CIDB Framework.  The Minister contends
that the limit set by the National Treasury has been exceeded
and it is thus not practical to allocate any further projects to the

learner program.
He further contends that based
on the values of the projects completed by the learner contractors,
they should have been able to
upgrade their CIDB grading after
completion of phases 1 and 2 if they had completed the
projects successfully.
[36]
The limit of R3 million per learner made it impractical for the
department to allocate any further
projects to learner contractors as
the approximate cumulative value of the contracts already allocated
in phase 1 and phase 2 ranged
between R2 900 000 to
R11 900 000.
[37]
The first respondent contends that many of the applicants herein are
already established contractors with
CIDB grading above the grades
contemplated
by the learnership programs. The Minister listed applicants
with higher CIDB grades as the 9
th and
12
th
applicants - 4GB contractors, 15
th
– 4CE and 5GB,
17
th  -   5CE and 5GB
, 21
st -
4GB
, 24
th 5GB and
3CE, 25
th 4GB
,
27
th 6 CE and
6 GB , 30
th -4GB
, 31
st 3SQ
AND 3 GB
, 32
nd 4GB
and 33
rd- 3CE and
4GB
and 34
th -4GB
applicants. He further stated that even
though it was envisaged that a 3
rd
component was to be
allocated to the learner contractors, they had been awarded the
maximum values which may lawfully be allocated
to learner contractors
in terms of the CIDB framework. Even though the management plan
envisaged the allocation of a 3
rd
project, departments are
not permitted to allocate a 3
rd
project to learner
contractors if such allocation is in conflict with the CIDB Framework
and the procurement processes. The Minister
contends that the
practical training of the learnership has been completed. What
remains of the learnership program is for the
learners to be assessed
by an accredited training provider and if they qualify to be awarded
a competency certificate for the award
of NQF Level 2 qualification
from CETA.
[38]
The National Treasury had granted permission that contracts may be
awarded to emerging learner
enterprises in the learnership program as
training projects on a negotiated price bases. The purpose of the
learnership program
was to enable the learners to complete actual
contracts as part of the learnership and to obtain relevant practical
experience
which was an essential element of a learnership program.
[39]
The first respondent further contends that the 6
th
,
8
th
,10
th
and 13
th
applicants have
been deregistered. The following entities, at the time the affidavit
was deposed to, were in the process of being
deregistered: 5
th
;11
th
; 14
th
; 15
th
; 16
th
;
20
th
; 21
st
; 22
nd
;29
th
;
31
st
; 32
nd
and 33
rd
. These
applicants, according to the first respondent, have no corporate
legal identity and thus lack legal standing to bring the
application.
[40]
The first respondent also confirmed that the fraud allegations
relating to the program were not substantiated.
He admitted the
allegations that the department expressed a commitment to facilitate
the implementation of phase 3 of the program
within the context of
the legal prescripts. The learner contractors were only entitled to
the rights stipulated in their construction
contracts concluded with
Coega.  The learners are only entitled to the rights stipulated
in the contract of employment and
learnership agreements concluded
with the second respondent. None of those agreements entitle the
applicants to a 3
rd
project and on this basis the
application must fail with costs.
Second and third
respondent’s case
[41]
The second and third respondents’ opposition is contained in an
affidavit deposed to by
Mr Thandolwethu
Lwandile Manda who is the Head of Department for the provincial
department of Public Works and its accounting officer.
Their
opposition may be summarized as follows: They raised certain points
in
limine
relating to,
inter alia,
lack of
jurisdiction; non-compliance with the provisions of Rule 18(6) of the
Uniform Rules of Court; the applicants’ claims
and/or debts
against the respondents had prescribed; and the failure of the
applicants to join Coega. None of these points were
pursued in
argument but they were not abandoned either.
[42]
These respondents admit that the learnership project consisted of
three (3) phases. They raised the point
that the full implementation
of the project was subject to,
inter alia
, the availability of
contractual work relevant to the learner experience on the one hand
and to the availability of funds contemplated
in the
Skills
Development Levies Act No. 9 of 1999
, the
Public Finance Management
Act No.1 of 1999
as well as the
Preferential Procurement Policy
Framework Act No.5 of 2000
and section 217 of the Constitution which
relate to procurement of government services. They denied that the
alleged legitimate
expectation amounted to a breach of contract that
could give rise to a cause of action. They contend that the
applicants in the
light of the legislative framework referred to,
above, were advised of the challenges relating to implementation of
the third phase
of the project.
[43]
They contend that the applicants have failed to make out a proper
case for the relief sought
and therefore the court should dismiss the
application with costs. These respondents contended that in monetary
values the phases
were structured as follows:
“
48.1
The programme was designed into three phases in respect of which
values in monetary terms were attached as follows:
48.1.1 phase 1:
R250 - R500 000,
48.1.2 phase 2:
R500 000 -  R2, 000 000;
48.1.3 phase 3:  R1m
-  R5m.”
[44]
The respondents also align themselves with the first respondent’s
opposition that the value of the
work that was awarded to the
applicants in relation to phases 1 and 2 far exceeded the monetary
value of the project work that
would have to be attained in phase 3.
They also contend that even though phase 3 has not materialized for
reasons already set out,
the intended values of the 3
rd
phase have been achieved by the applicants. In this regard, these
respondents attached a spreadsheet of values awarded to some
of the
applicants.  I raised with Mr Poswa in argument that the
spreadsheet lacked details and had columns for liability,
contract
amount, lapsed, amount etc. and what it intended to convey was not
explained.  In any event, the spreadsheet relates
only to 21 of
the learner contractors and nothing is said about the remaining
contractors and learners.
[45]
The second respondent disputed the agreement
relating to Mr Meki on the basis that it purported to be an agreement
between Mr Meki
and the second respondent. In relation to that of Mr
Soji, the second respondent disputed it on two grounds. First, that
Mr Soji
is not a party to this application. Second, that the
agreement purports to be between Mr Soji and Brembo Investments (Pty)
Ltd
in the Province of Gauteng. I need to address this issue out of
turn because the agreement makes it clear that the employer is the

“
Department of Public Works”
and Brembo Investments (Pty) Ltd is the training provider.  The
respondents are clearly wrong in this regard.
[46]
These respondents associated themselves with the
stance adopted by the first respondent that the application
must fail
with costs.
Applicants reply
[47]
In reply the applicants persisted in their contention that the
original approval of the program
by the national treasury remains
extant and applicable to the program. The 2010 letter relied upon by
the first respondent is irrelevant
and does not impede the
implementation of the outstanding phase which the applicants seek.
They further contend that reliance on
the 2005 treasury regulations
is misplaced. They stated that the purpose for which the programme
was approved, namely, developing
contractors to be elevated to a
level where they can compete successfully in the open market was
never realized by the program.
They complain that instead of
pursuing the purpose of the program, all the learners without
exception were left in a destitute
position, saddled with heavy debt
which resulted in their sequestration, the legacy of financial ruin
with the attendant health
related stresses that led to death of some.
[48]
They further contend that one of the conditions was that the learners
must graduate from the
learnership program and none of them
graduated. Instead, the program was discontinued without any
explanation and to their detriment.
They further argue that the award
of a qualification by CETA will not happen if the program remains
incomplete. It is for that
reason that the applicants seek the
completion of the learnership by the three respondents as approved by
the national treasury
in 2003. They relied on the admission made by
the former Minister of the first respondent Mr Thulasi Nxesi where he
stated,
inter alia
, that”
the EPWP phase 1 (project
1) of this learnership program was undertaken fairly successfully.
EPWP phase 2 (project2) of this learnership
program was not well
implemented and managed.
They contend that all the respondents
are responsible for the unlawful cancellation of the program.
[49]
The applicants challenged the allegation that the 3
rd
phase cannot be implemented due to budgetary constraints and in this
regard they referred to interviews held with one Mr Tsepo
Phefole on
01 August 2023.  Mr Phefole is a Director: Infrastructure in the
third respondent’s department. He spoke
about the budget which
runs into billions of rands of the public mud schools that they
needed to eradicate in the province going
back many years. His
interview was for the opening of a multi-billion rand Gobinamba
Technical and Commercial School in the province.
At that time he had
also mentioned that there was just over 400 of such projects which
still needed to be rolled out running beyond
a previously set
deadline of the year 2030. The applicants contend that this confirms
not only that there are projects that will
run up to 2030 but that
there is also a budget running into billions of rand that will be
allocated to those projects. In this
regard, they contend that the
allegations by the respondents are accordingly false.
[50]
Relying on a draft proposal by the fourth respondent in Annexure “G”,
the applicants
contend that as far back as 2016 the same respondents
had a budget of about R400million which they had to spend within
three months
to avoid it being forfeited to national treasury as
unspent funds. If that were to occur it would in turn result in the
reduction
of the budget allocation for the following financial year.
The fourth respondent proposed that an amount of R16million would
suffice
in the implementation of phase 3. The applicants further
relied on an advert published on 6 May 2016 in the Daily Dispatch for
construction works of 17 schools throughout the province. They
contend that these projects could have been used to implement phase

3. The applicants further raised reliance on several documents being
a Daily Dispatch newspaper article published on 28 February
2023 with
an article entitled: ‘
BHISHO FORFEITS R100 MILLION WHILST
SCHOOL SUFFER.’
It was reported in the article that
the
Eastern Cape Department of Education was to forfeit R100million
intended for infrastructural development because it was not
able to
spend the money within the financial year.
The forfeiture of the
R100 million was announced by the Minister of Finance, Mr Enoch
Godongwana.
[51]
The article also alluded to the fact that this was not the first time
that the province had forfeited
a portion of its grants as it did so
during March 2022 when it forfeited R200million because it was not
able to spend the money.
The Minister of Finance had indicated that
it wanted to stop the flow of funds to provinces that could not spend
them and re-allocate
those monies to other provinces that were in a
position to spend. The applicants listed a sample of articles from
various Eastern
Cape province tender bulletins in the Sunday Times
about the school projects which they believe could have been made
available
for the 3
rd
phase. They also made reference to a
News24 article which was published online on 11 August 2023 which
reported on the handover
of Mdunyelwa Nguntyi Primary School at Lower
Ngqungqu in Mqanduli. The handover was done by the MEC Ms Ntombovuyo
Nkophane of the
second respondent to the third respondent MEC Mr
Fundile Gade.
[52]
They further allege that Mr Gade had alleged that out of the 200
schools built through the Accelerated
School Infrastructure Delivery
Initiative (ASIDI) in the country, 165 are currently in the Eastern
Cape meaning the province is
a major beneficiary of the ASIDI
project. According to Mr Gade since 2019 they have handed over more
than 58 schools and there
were 7 schools that still needed to be
handed over between the time of the announcement being made and
January 2024. The applicants
allege that they have sufficiently
demonstrated that the claim by the respondents that there was no
budget or projects to implement
phase 3, is clearly false, and must
be rejected by this court. They also contend that should the
respondents persist at the hearing
with these contentions, that would
create a dispute of fact which can only be resolved through oral
evidence. In this regard, they
have listed names of the witnesses
should they wish to be called to testify in support of the
allegations that are made by the
respondents, including the two MECs
mentioned above.
[53]
The applicants state that the second respondent had an obligation to
make prompt payments to
learner contractors in respect of the
training projects and would be liable to pay penalties if they failed
to do so. They contend
that the second respondent failed to honour
those obligations in respect of both the first and second phases. As
a result of those
failures the applicants fell behind on the
repayments of their bank overdrafts with Absa and one of them was
sequestrated. Five
of the learners died especially after the unlawful
cancellation of phase 3. They list some of the applicants who had not
received
their final payments and their retention amounts for phase 2
and one of them being the 38
th
applicant, the owner of the
4
th
applicant. For example, the 37
th
applicant
(owner of the 3
rd
applicant), 44
th
applicant
(owner of the 10
th
applicant) and 62
nd
applicant (owner of the 28
th
applicant) were all paid
their financial account for phase 2 in 2016 which is 5 years after
the completion of those works. The
40
th
applicant (owner
of the 6
th
applicant) was paid 6 years later.
[54]
They contend that the damage suffered by these applicants at the
hands of the respondents was
detrimental to some of the learners who
actually died and who are listed in the affidavit as:
Mr Zola
Buqwana, Mr Khuluwa Zonyana, Ms Ntombizonke Mayaba, Ms Thembeka Mqoli
and Ms Zodwa Kilman.
They refer to correspondence that Mr
Dlabantu had written to address their concerns and acknowledged the
validity of their claim
in relation to phase 3 and moved for the
implementation of the outstanding phase. He even wrote to Absa
begging it to stop sequestration
of the learners. They contend that
the letter from the national treasury did not grant permission and is
irrelevant because the
approval was made way back in 2003 and
therefore there was no need for another approval.
Issues for
determination
[55]
The parties agreed that the issues for determination is whether the
applicants are entitled to
the implementation of Phase 3 a
learnership program, in particular whether they are entitled to be
awarded a third construction
contract in terms of the learnership
program on the basis of a contract or legitimate expectation.
Legal
submissions
[56]
Ms Ntsepe, appeared for the applicants.  She submitted that the
applicants have the requisite
standing to bring the application. She
relied on the provisions of section195 (1) of the Constitution for
her submission that public
administration must be governed by the
democratic values and principles, which include amongst others,
accountability, transparency,
efficiency and economic and effective
use of state resources.
[57]
She submitted that: there is one approval and that is the 2003 one
from the State Tender Board.
The program has been implemented in
terms of that approval. The applicants have made out a case that
there was phase 3 that was
authorized but has not been implemented.
On the evidence before court the theory leg of the program has been
finalized only the
practical leg has to be completed. After the
completion thereof then the applicants will be in a position to
approach CETA to finalize
the program. The program was budgeted for
and endorsed by all stakeholders. The state respondents do not
contend that phase 3 was
precluded. The applicants have no other
alternative remedy but to approach court.  There was a valid
contract concluded although
it did not specify the 3
rd
phase but there was an oral agreement whose existence is supported by
the subsequent conduct of the respondents acting in concert.
If the
court were to have regard to all the documents, such as the MOA which
was about the applicants and for their benefit, the
subsidiary
contracts and the attachments, it must find that there was a valid
contract between the parties
[2]
.
She relied on
Norvatis
v Maphil
for the submission that:
“
[35]
The argument that the words of
the document, signed by Van Jaarsveld and Van der Spuy on 14 October
2004, must be examined only
linguistically, and that the genesis of
the document, subsequent conduct and other facts relevant to the
conclusion of the contract
be ignored, is directly contrary to the
decisions of this court cited above, and many others. But, as I have
said, the issue here
is not what the parties intended their contract
to mean, but whether they intended to bind themselves contractually.
That inevitably
requires an examination of the factual matrix –
all the facts proven that show what their intention was in respect of
entering
into a contract: the contemporaneous documents, their
conduct in negotiating and communicating with each other, and,
importantly,
the steps taken to implement the contract.”
[58]
She further submitted that the applicants have established a clear
right to the relief they are
seeking. This court may grant a
supervisory order or a structural interdict in order to ensure that
the program is completed. On
the issue of costs she argued that the
first to third respondents must be ordered to pay costs on a punitive
scale.
[59]
Mr Rocke SC together with Ms Appels appeared for the first
respondent. They advanced the following
legal arguments: Mr Rocke
conceded that after the joinder of the natural persons the issue of
standing had to a large extent fallen
away. The applicants who have
been deregistered and liquidated have no
locus standi
to bring
this application. The applicants have not proven that a contract
existed between them and the first respondent which entitles
them to
the relief sought. They did not allege and or prove that the
requirements of the doctrine of legitimate expectation have
been met.
Even if the applicants have proven the requirements of a legitimate
expectation, a legitimate expectation does not entitle
the applicants
to the relief sought.
[60]
This application and the program should be understood in the context
of the Skills Development
Act No.97 of 1988 and the statutory rights
and obligations that are binding on learners, employers, skills
development providers
and the relevant SETA. The rights of the
learners accepted into the program are defined by the learnership
agreements and the Skills
Development Act. The application should
also be understood in the context of the statutory framework which is
applicable to public
procurement and the awarding of contracts by the
Organs of State. Although the relief is couched in a manner that it
only seeks
implementation of a learnership program, in essence what
is being sought is the awarding of construction contracts to the
juristic
persons who have originally instituted this application,
that is the 1
st
to the 34
th
applicants. There
was conflation of policy and contractual rights by the applicants.
The applicants do not establish a right
to phase 3.
[61]
Relying on section 217 of the Constitution, he submitted that, any
procurement policy which gives
preference to certain categories of
persons in the allocation of contracts must comply with the
provisions of the Preferential
Procurement Policy Framework Act No.5
of 2000 (PPPFA) in particular the provisions of section 21 which
provides for the preference
point system in respect of price and
preference in the evaluation of tenders. The program was designed to
allocate contracts to
learner contractors without complying with
section 2 of the PPPFA based on exemption provided by the national
treasury intends
of section 3 of the PPPFA. The permission granted by
the national treasury in 2003 related to construction of projects
which were
to be awarded on a negotiated basis to learner contracts
for training purposes. The terms of the exemption provided by
treasury
made it clear that it is aimed at training contractors to a
level where they can compete in the open market for a predetermined

period of time and that once they are so developed they should exit
the program.
[62]
This exemption, he argued, was intended to apply to new entrants to
the construction industry
and not to established contractors with
experience and had an established track record in the construction
industry. The exemption
was further limited in respect of the value
of projects which may be allocated for training purposes and the
total value for the
allocation of projects per learner in the program
may not exceed R3million. The awarding of the contract in violation
of the procurement
prescripts would be unlawful and in breach of the
legality principle. In awarding construction contracts to
contractors, the respondents
were also bound by the CIDB Act and its
Regulations.
[63]
In terms of the CIDB Act all construction contractors operating in
South Africa must, in terms
of the Regulations thereof, register with
the CIDB in order to qualify to be awarded construction contracts by
Organs of State.
In this regard, reliance was placed on sections
16(3) to (5) of the CIDB Act.
[64]
In compliance with section 16 of the CIDB Act, the Minister made
Regulations in terms of the
Construction Industry Development
Regulations GN692 of 09 June 2004 (Government Gazette No. 26427). The
Regulation reads:
“
1.
The contractor grading designation of a
contractor is determined by determine the list of:
(a)
The financial capability of the
contractor in accordance with sub-regulation 2; and
(b)
The work’s capability of the
contractor in accordance with sub-regulation 5.
2.
The financial capability of a
contractor is determined by establishing whether:
(a)
The contractor’s best annual
turnover over the 2 financial years immediately preceding the
application equals or exceeds the
minimum annual turnover in the
third column of table 1 determined in the financial capability
designation contemplated in Regulation12(1);
(b)
The contractor during the five years
immediately preceding the application has completed at least one
construction works contracts
of which the total value equals or
exceeds the amount in the fourth column of table 1 of the financial
capability referred to in
Regulation 12(1)(c). The contractor has
available capital calculated in accordance with sub-regulation; 3,
equal to or exceeding
a value determined in relation to the financial
capability designation as contemplated in Regulation 12(1).”
[65]
In this regard the Minister attached to his heads of argument a Table
which shows the designation,
the upper limits of tender value, best
annual turnover, largest contract of upper limits tender value,
available capital. It was
submitted that a copy of the Table 1
referred to in Regulation 11 indicates that a contractor grading
designation is a measure
of the stage of development the contractor
has reached and its capability to compete in the open market. The
grading is also based
on annual turnover contract works, track record
and available capital. Capital relates to funds presumed available to
a contractor
to start a new project. It also certifies a contractor
as capable of delivering projects up to a predetermined contract
value in
a given task of works. A contractor’s CIDB grading
designation is inextricably linked to its development, level of
training,
ability to compete for projects in the open market and by
implication whether any further practical training experience is
required.
[66]
It was further argued that the advertisement for the learnership
program inviting aspiring building
contractors to participate in the
program, should therefore be understood in the context of the CIDB
grading system. The purpose
of the program was to develop new
contractors, that is contractors that are only able to register in
the lower grades 1 and 2 of
the CIDB register and to develop them to
a stage where they can compete in the open market. Learner
contractors that have upgraded
their status to grade 3 or higher are
able to compete in the open market and should be able to meet the
requirements of an NQF
Level 2 qualification.  No further
training is required. In this regard, the first respondent argued
that it should be noted
that for a contractor to be able to register
in grade 3, Table 1 stipulates best annual turnover of R1million and
available capital
of a R100 000. Any learner contractor that has
attained grade 3 status is no longer entitled to be awarded
construction contracts
for training purposes in terms of the program.
[67]
The department complied with all of its obligations in terms of the
MOA.  It also funded
the mentorship of the learners during phase
1, when the second respondent was not in a position to meet its
obligations in terms
of the MOA.
[68]
The continued availability of suitable training projects to allocate
to learner contractors was a key determinant
of the success of the
program and therefore each learner contract concluded with the
individual learners contained a clause which
stipulated that
employment under a learnership is based on a reasonable expectation
of continuing work availability to the employer
for the duration of
the ‘learnership period’. Learnership agreements
concluded between the learners and the second
respondent did not
refer at all to the three phases of the program nor did it bestow a
right on the learners to be awarded three
training projects.
[69]
The first respondent acknowledges that during 2017 and 2018 it
approached its national bid adjudication
committee for approval to
refinance projects for allocation to the learner contractors and to
appoint the fourth respondent as
the implementing agent. This, it was
argued it did, in an effort to assist the award of a third project to
the learner contractors
for the purposes of the learnership program.
The NBAC declined to provide such approval and instead required that
the department
engage national treasury for approval to allow a
deviation from the prescribed procurement processes.
[70]
As a result of the limitation placed by the national treasury in its
letter of 24 May 2021, which
is referred to above, it became
impractical and unlawful to allocate any further projects to learner
contractors as the approximate
cumulative value of the contracts
already allocated in phases 1 and 2 ranged between R2 900 000
and R11 900 000.
The first respondent
concedes that the department through its management plan has
envisaged the allocation of a third project. However,
the first
respondent is
not permitted to allocate contracts to learner
contractors as such allocation is in conflict with the exemption
provided by the
national treasury. The provisions of the management
plan are not contained in the learnership agreement concluded between
the second
respondent and the learners and the learners have no
contractual rights in respect thereof.
[71]
The applicants who are cited in the application are already
established contractors with CIDB
grading above the grades targeted
by learnership programs and are registered in multiple classes of
construction work and have
received the full benefit of the
department contracts development program. There is , according to the
first respondent, no reason
to allocate a third project to them for
training purposes. He submitted that the practical and theoretical
training of the learnership
has in essence been completed. What
remains of the learnership program is for the learners to be assessed
by an accredited training
provider and they should be regarded as
competent to be awarded a competency certificate to stipulate that
they have met the requirements
to be awarded the NQF Level 2
qualification.
[72]
In support of the first point in
limine
of lack of
locus
standi
the first respondent argued that the 6
th
, 8
th
,
10
th
and 13
th
applicants have been deregistered
and therefore have no
locus standi
to bring this application.
The 5
th
, 11
th
, 15
th
, 16
th
,
20
th
, 21
st
, 29
th
, 31
st
,
32
nd
, 14
th
, 22
nd
and 33
rd
applicants were in the process of being deregistered. It was argued
that by virtue of the fact that the abovementioned applicants
have
been deregistered or are in the process of deregistration, they have
no corporate legal identity and accordingly they have
no legal
standing to bring this application. On this basis alone, their
applications should be dismissed with costs. It was further
argued
that the applicants have failed to prove the existence of a contract
concluded with the first respondent. The first respondent
is not the
employer in terms of the learnership agreements that have been
concluded with the learners who have been accepted into
the program.
The terms of the learnership agreements do not bestow a right on the
learners to be awarded three construction contracts.
Their rights in
terms of the program are defined by the terms of the learnership
agreements and by the provisions of the Skills
Development Act. It
was argued that only the 40
th
applicant, Mr Siphelele Meki
has proven that he is a learner entitled to the rights as set out
above. His agreement with the second
respondent and the 40
th
applicant has been attached to the founding affidavit. He submitted
that because none of the other applicants have attached their

learnership agreements to prove that they are entitled to the rights
flowing from acceptance into the program their applications
should be
dismissed.
[73]
He further argued that the first respondent is not a party to any of
the abovementioned contracts
concluded with the learners or with the
learner contractors, any rights obtained by the learners and the
learner contractors in
terms thereof are not enforceable against the
first respondent. The terms of the MOA are enforceable
inter-governmentally and not
by third parties who are not privy to
the agreement between the department and the other parties to the
MOA. The reliance by the
applicants on some utterance at various
meetings by the officials of the department do not alter the terms of
the learnership agreements
and do not confer more rights in the
learners than what they are entitled to in terms of that learnership
agreements and the Skills
Development Act.
[74]
Lastly, it was argued that the requirements of the doctrine of
legitimate expectation have not
been met. If a party relied on the
doctrine of legitimate expectation he should allege and prove a
reasonable expectation based
on a well-established practice or an
express promise by an administrator acting lawfully. A legitimate
expectation only arises
when the practice or promises are clear,
unambiguous, unqualified and most importantly lawful. In this regard,
reliance was placed
on
National
Director of Public Prosecutions v Phillips
[3]
;
and on
South
African Veterinary Council and Another v Szymanski
[4]
and
Duncan
v Minister of Environmental Affairs & Tourism
[5]
.
It was argued that the legal protection afforded by a legitimate
expectation takes the form of ordering that a fair procedure
be
followed before a decision is made in respect of the expected
conduct. It does not entitle the applicant to substantive relief.
In
this regard, the first respondent relied on
Administrator
,
Transvaal
v Traub
[6]
and
in
Minister
van Korrektiewe
Dienste
[7]
.
[75]
It was argued that this court is not empowered to order the first
respondent to award a third
construction contract to the applicants
on a negotiated basis as such an order will breach the principle of
legality and will exceed
the powers of the relief that the court may
grant, even if the requirements of legitimate expectation have been
met. He argued
that it is not the function of the courts to implement
policy, that is the function of the executive.  It was argued
that
the applicants are not entitled to the relief sought against the
first respondent and their application should be dismissed with

costs. He further relied on
ACSA
v Imperial Group
[8]
,
for
the contention that the allocation of the construction awards was not
done in accordance with the provisions of section 217
of the
Constitution.  He argued that the learners to the programme had
already received work to the value of more than 3 million.
He
conceded that the information given by the respondents in this regard
is not detailed.  He submitted that costs should
follow the
result and that any reliance on the
Biowatch
principle is misplaced.
Second
and third respondents
[76]
Mr Poswa made the following submissions: That the applicants failed
to satisfy the
Duncan
[9]
requirements on the doctrine of legitimate expectation. Where the
alleged expectation is based on no more than a newspaper
advertisement
calling for interested persons to respond to an
intended contractor training program, no such representation inducing
expectation
exists or has been established so as to justify reliance
on the doctrine.  Any reliance on the doctrine of legitimate
expectation
has no basis and must accordingly fail.
[77]
If one had regard to the minutes of the meeting held in December
2015, not all of the applicants
have CIDB registration. For that
reason, he argued, they fall short of proving entitlement to the
relief they sought.  He
relied on the principle of privity to
the contract for the submission that the applicants are not parties
to the MOA and cannot
therefore seek to enforce its terms. The
agreement relied upon by the applicants does not entitle them to
phase 3.
[78]
The advertisement does not amount to an offer and
acceptance.  In this regard he relied on
Hottentots
Holland Motors (Pty) Ltd v R
[10]
.
The applicants failed to prove the existence of a contract. He
further argued that it is not for these respondents to prove or

justify why phase 3 has not been implemented.  In any event, he
argued, the volume of work that has been done in phases 1
and 2
exceeds the threshold value of what was to be attained in phase 3.
[79]
The second and third respondents concede that
there was going to be phase 3 to the value of R1m to R5m.
Applicants
have failed to make out a case for the relief they are seeking and
the application must fail with costs.
Fourth
respondent
[80]
The fourth respondent, Coega, represented by Mr Macozoma submitted:
That it is common cause that
the applicants abandoned any relief
sought against the fourth respondent. The only issue that the
applicants failed to address
is the issue of costs.  Initially
relief was sought against Coega and it was compelled to put up a
defence and by so doing
it incurred costs.  After Coega filed
its answering affidavit and opposed the application the applicants
withdrew the application
against it. The second and third respondents
raised a point of non-joinder of Coega which prompted the applicants
to bring a joinder
application in to address that point in
limine.
On 27 September 2022, Coega was again joined to the proceedings and a
court order was granted in that regard.
[81]
When the applicants delivered their amended notice of motion dated 25
October 2022, they did
not distinguish between the respondents. They
simply sought the orders against all the respondents which included
Coega, save for
the order that related to costs. Again, Coega
delivered its answering affidavit and confirmed that there was no
contractual
lis
between it and the applicants. Therefore, no
order compelling the fourth respondent to implement phase 3 could be
obtained. It
was only on 21 August 2023 when the applicants filed
their replying affidavit that they indicated unequivocally that they
were
not seeking relief against Coega.
[82]
Mr Macozoma relied on
Bowman
N.O. v De Souza Roldao
[11]
for the submission that:
“
an applicant
must stand or fall by his petition and the facts alleged therein in
that although sometimes it is permissible to supplement
the
allegations contained in the petitions, still the main foundation of
the application is the allegations of fact stated therein,
because
those are the facts which the respondent is called upon either to
affirm or deny.”
[83]
He submitted that the applicants should be mulcted in costs.  When
a court awards costs
to a successful litigant, it must strive to
indemnify in so far as possible that litigant for the expenses it has
been put in by
being compelled to initiate or defend litigation. In
this regard, he relied in
Zeelie
v General Accident Insurance Co Ltd
[12]
.
He also referred to the decision of the Appellate Division in the
locus
classicus
Nel
v Waterberg Landbouwers Ko-operatieve Vereeniging
(Nel)
[13]
where the court held
that something more underlies the practice of awarding costs as
between attorney and client than mere punishment.
He submitted that
Coega should not be out of pocket in respect of the expenses caused
to it by the litigation.
[84]
He relied on the principle raised in
Karroo
Meat Exchange Ltd v Mtwazi
[14]
where the court remarked that
“…
in the
first place it seems to me important that the judicial officer should
be in control of proceedings in his court. Once a case
has been set
down for hearing the court has an interest to see that justice is
done, both in regard to the merits of the dispute
and then in regard
to the costs. When the case has progressed to the stage of being set
down for hearing, the parties can longer
do as they please. The court
cannot be deprived of its control merely by reason of the fact that
the plaintiff has served a notice
of withdrawal. In the second place
it seems to me wrong, in principle, that the plaintiff having
initiated the proceedings and
put his opponent to inconvenience,
trouble and expense, should, subject only to the payment of costs at
his mere whim have the
right to withdraw the action at any time
before the hearing.”
[85]
He also relied on the English principle that has been approved in the
South African jurisprudence
which is normally referred to as the
‘Bullock costs order’
[15]
.
He argued that the court must dismiss any relief that is sought
against Coega with costs on an attorney and client scale.
Discussion
Points
in limine
(a)
Standing
[86]
Mr Rocke correctly conceded that the standing
point fell away to a large extent when the natural persons
were
joined as applicants.  However, the point needs to be addressed
in relation to those applicants that have been deregistered.
Mr
Perino Pama,  in his article entitled : ‘
Debt
collecting against a deregistered close corporation or company”
[16]
dealt with the consequences of deregistration of a company or close
corporation The applicants admitted that the applicants that
were
identified by the first respondent were indeed de- registered.  The
effect of deregistration is that a company or close
corporation is
deprived of its legal existence.
[87]
In
Miller and Others v Nafcoc Investment
Holdings Co. Ltd
, Cloete JA stated:
“
Deregistration,
on the other hand, puts an end to the existence of the company. Its
corporate personality ends in the same way that
a natural person
ceases to exist on death
[17]
.
Once there has been deregistration there is obviously no purpose in a
corporate postmortem and no – one would have the authority
to
conduct one.”
[88]
It terminates the authority of a person who was a lawful agent of the
company or a close corporation
prior to deregistration and an
attorney who continues to act for the company or close corporation
may be held personally liable
for the costs of the application from
the date of deregistration.  There is an onerous duty on members
and directors of corporate
entities as well as attorneys acting on
behalf of such company or close corporation, to ensure that the
entities are registered
at all times when they engage in litigation.
There is currently no application for the restoration of any of those
entities
[18]
and I need not
pronounce on what may or may not happen if that occurs. There is
accordingly merit in the objection raised by the
first respondent in
this regard.
[89]
It follows that the following applicants: 5
th
,
6
th
,
8
th
,10
th
,
11
th
, 13
th
, 14
th
;
15
th
;
16
th
;
20
th
;
21
st
;
22
nd
;29
th
;
31
st
;
32
nd
and 33
rd
,
have been deregistered and have no legal standing to continue with
this application unless their registration has since been restored.
[90]
The following persons are deceased. They are: Mr Zola Buqwana, Mr
Khuluwa Zonyana, Ms Ntombizonke Mayaba,
Ms Thembeka Mqoli and Ms
Zodwa Kilman. They do not appear as applicants in this application.
Whatever order is made they
have no right to benefit therefrom.
This also applies to the entities they formed in terms of the
program. Their learnership came
to an end when they died. Nothing
more needs to be said about them.
Jurisdiction point
[91]
On the issue of jurisdiction, the second and third respondents
contend that the parties in the
MOA agreed that where there was a
dispute such dispute would be referred to arbitration.  This
point may be disposed of by
referring to the actual MOA. It is
attached to the first respondent’s answering affidavit as
Annexure A. There were three
parties only that concluded it, namely,
the national Department of Public Works, provincial Department of
Public Works and CETA.
The arbitration clause related
specifically to the parties that concluded the agreement and no
other. There is accordingly no merit
in the lack of jurisdiction
point.
(c)
Non-compliance with the provisions of Rule 18(6) of the Uniform Rules
of Court
[92]
The second and third respondents contend that the applicants failed
to comply with the provisions of Rule
18 (6) because they did not
attach the contracts relied upon for the alleged breach of contract.
On this basis they submitted
that the application must be dismissed
with costs. The applicants relied on two agreements as evincing
agreements that the successful
learner contractors were expected to
sign.  They alleged that those agreements were signed by two of
the applicants who were
parties to this application.  The second
and third respondents denied the agreements relating to Mr Meki and
to Mr Soji.  As
aforementioned Mr Meki filed a confirmatory
affidavit.
[93]
In
ABSA
Bank Ltd v Zalvest Twenty (Pty) Ltd
[19]
,
Rogers J, in dismissing an exception based on Rule 18 (6) held:
“
9.
The rules of court exist in order to ensure fair play and good order
in the conduct
of litigation. The rules do not lay down the
substantive legal requirements for a cause of action nor in general
are they concerned
with the substantive law of evidence. The
substantive law is to be found elsewhere, mainly in legislation and
the common law. There
is no rule of substantive law to the effect
that a party to a written contract is precluded from enforcing it
merely because the
contract has been destroyed or lost. Even where a
contract is required by law to be in writing (eg a contract for the
sale of land
or a suretyship), what the substantive law requires is
that a written contract in accordance with the prescribed formalities
should
have been executed; the law does not say that the contract
ceases to be of effect if it is destroyed or lost.
10.
In regard to the substantive law of evidence, the original signed
contract is the best evidence
that a valid contract was concluded and
the general rule is thus that the original must be adduced. But there
are exceptions to
this rule, one of which is where the original has
been destroyed or cannot be found despite a diligent search. In such
a case the
litigant who relies on the contract can adduce secondary
evidence of its conclusion and terms (see Singh v Govender
Brothers
Construction
1986
(3) SA 613
(N)
at 616J-617D). There are in modern law no degrees of secondary
evidence (ie one does not have to adduce the ‘best’

secondary evidence). While a photocopy of the lost original might be
better evidence than oral evidence regarding the conclusion
and terms
of the contract, both forms of evidence are admissible once the
litigant is excused from producing the original. In Transnet
Ltd v
Newlyn Investments (Pty) Ltd
2011
(5) SA 543
(SCA)
a defendant, in opposing its evictio
n
from certain premises, relied inter alia on a written
addendum to the lease agreement. The defendant did not annex the

addendum to its plea, alleging that a copy of the addendum was not in
its possession and was last in the possession of the plaintiff.
The
original addendum was not adduced in evidence. The question whether
an addendum had ever been concluded was hotly disputed.
The Supreme
Court of Appeal held that in the circumstances of the case the
defendant was excused from producing the original and
found that the
execution and terms of the addendum had been sufficiently proved by
oral testimony (see particularly at paras 4-5
and 17-19). Even in the
case of wills, the loss or destruction of a deceased’s will
does not preclude an interested party
from proving that a valid will
was executed and what its terms were, and upon such proof the court
will under its common law powers
direct that the estate be
administered in accordance with such terms (see, for example, Nell
v Talbot
NO
1972
(1) SA 207
(D)
at 209H-210E; Ex parte Porter
2010
(5) SA 546
(WCC)
para 12).
11.
That then is the substantive law. The rules of court exist to
facilitate the ventilation
of disputes arising from substantive law.
The rules of court may only regulate matters of procedure; they
cannot make or alter
substantive law (United Reflective Converters
Pty Ltd v Levine
1988
(4) SA 460
(W)
at 463B-E and authority their cited). The court is, moreover, not a
slave to the rules of court. As has often been said, the
rules exist
for the courts, not the courts for the rules (see Standard bank
of South Africa Ltd v Dawood
2012
(6) SA 151
(WCC)
para 12). The following passage from Khunou & Others v M
Fihrer & Sons (Pty) Ltd & Others
1982
(3) SA 353
(W)
at 355F-356A bears repetition:
‘
The
proper function of a Court is to try disputes between litigants who
have real grievances and so to see to it that justice is
done.
The rules of civil procedure exist in
order to enable Courts to perform this duty with which, in turn, the
orderly functioning,
and indeed the very existence, of society is
inextricably interwoven. The Rules of Court are in a sense merely a
refinement of
the general rules of civil procedure. They are designed
not only to allow litigants to come to grips as expeditiously and as
inexpensively
as possible with the real issues between them, but also
to ensure that the Courts dispense justice uniformly and fairly, and
that
the true issues which I have mentioned clarified and tried in a
just manner.”
(my
emphasis
)
[94]
The sentiments expressed by the Court in
Zalves
t
apply equally to the facts of this case. This point too, must
accordingly fail.
(d)
Applicants’
claims and/or debts against the respondents had prescribed:
[95]
The respondents did not allege any facts upon which the prescription
point is based.  To
the extent that the respondents regard
applicants as creditors, it suffices to state that the applicants did
not place before me
a complete cause of action, meaning that every
fact they had to prove to support their entitlement to judgment on a
monetary claim
that must have occurred by the time of issue, or at
least service, of the process initiating the recovery
proceedings.
[20]
This
application is not a claim for damages. No such relief is sought.
There are sweeping allegations made in relation to Absa
Bank
overdraft facilities, non- payment or late payments of the learners’
accounts.  None of the parties addressed those
issues in
argument.
[96]
In the event that the point relates to a debt to
perform contractual obligations, that will generally become
due in
accordance with the contract, and interpretation of its terms will,
in the absence of other relevant indicators, indicate
when the debt
is due.  In
Munnikhuis
v Melamed NO
[21]
,  Wunsh J, stated:
“
If a debtor
fails or refuses to perform some time after the debt becomes due, the
failure or refusal does not give rise to a fresh
or different debt
unless the creditor then cancels the agreement. If the creditor does
not, it remains entitled to sue for
performance. The breach of
contract does not, however, create a new cause of action for specific
performance. It may well create
a new cause of action for
cancellation, and even for damages (see the discussion in Van der
Merwe et al (op cit at 240- 2). The
authors make a related point in a
different context in regard to a claim for performance against a
party which has committed a
breach of contract. (foot notes omitted):
“
A claim for
specific performance in terms of a contract, though instituted upon
breach, is based on the contents of the contracts
and not on the
breach as such.’
[22]
[97]
The respondents did not set out any facts to
support the prescription point.  As indicated in this
judgment
it is not their case that the agreement was cancelled. The fact that
the second phase was finalised some five years after
the agreement
was entered into, the approval of the third phase as communicated by
Ms Nemasetoni during 2015, defeats any suggestion
that the agreement
was to endure only for two years.   In
Makate
v Vodacom (Pty) Ltd
[
23]
,
Jafta J: stated:
“
[92]
However, in present circumstances it is not necessary to determine
the exact meaning of “debt”
as envisaged in section 10.
This is because the claim we are concerned with falls beyond the
scope of the word as determined
in cases like Escom which
held that a debt is an obligation to pay money, deliver goods, or
render services.  Here
the applicant did not ask to enforce any
of these obligations.  Instead, he requested an order forcing
Vodacom to commence
negotiations with him for determining
compensation for the profitable use of his idea.
[93]
To
the extent that Desai went beyond what was said in Escom it
was decided in error.  There is nothing
in Escom that
remotely suggests that “debt” includes every obligation
to do something or refrain from doing
something apart from payment or
delivery.  It follows that the trial Court attached an incorrect
meaning to the word “debt”.
A debt contemplated
in
section
10
of
the
Prescription
Act does
not
cover the present claim.  Therefore, the section does not apply
to the present claim, which did not prescribe.”
[98]
In my view, for as long as the program remains incomplete
prescription cannot arise.  To
hold otherwise would amount to a
failure to promote the values that underlie an open and democratic
society based on human dignity,
equality and freedom as enshrined in
section 39 of the Constitution.   Any failure by the State
to fulfil a program such
as this one, whose main purpose is to
upskill the citizens to alleviate unemployment and poverty, impacts
on the dignity of those
selected learners who have not achieved the
purpose for which the program was designed.  I accordingly find
that the
prescription point must accordingly fail.
(e)
Joinder of Coega
[99]
This point was cured by the formal joinder of Coega and it is
therefore not necessary to consider
it further.
Merits
Are the agreements
valid?
[100]
The second and third respondents made no effort to state the
grounds upon which they denied the existence of the two contracts
relied
upon by the applicants. They simply
alleged
that the agreement relied upon by the applicants “
purported
to be an agreement between Mr Meki and the second respondent”
.
This denial flies in the face of the
learnership employment agreement being on the letterhead of the
second respondent. These respondents
admit that phases 1 and 2 have
been concluded. If there were no agreements such as those that have
been put up by the applicants,
how did they contract with them for
the finalised phases 1 and 2? The first respondent who was
instrumental in the conception and
formation of the program, the
selection of learners and in facilitation of its implementation,
recognised the agreements
as
similar to those entered into between the learners and the second
respondent.
[101]
Those are the agreements attached to the founding affidavit
and relied upon by the applicants. There is simply a bare
denial from
the second and third respondents with no facts pleaded in challenging
the agreements. They do not allege, for example,
that no such
agreements exist, or that they are fraudulent documents or any
allegations made that would cast doubt on the authenticity
of the
agreements.  These agreements were relied upon in the
implementation of phases 1 and 2. This takes me to the next point
of
whether this issue constitutes a genuine dispute of fact. The
agreements, according to the MOA were to be concluded with the
second
respondent. It is provided:
‘
7.
OBLIGATIONS OF DEPARTMENT OF PUBLIC WORKS OF THE EASTERN CAPE
7.1
Department of Public Works of the Eastern Cape will ensure that
suitable contracts, in accordance with the conditions of the
EPWP are
designed timeously and that sufficient funding as specified in the
management plan is available for the execution of these
Learner
Contractors.”
[102]
Although they deny the agreements, these respondents rely on
them for their contention that phase 3 is not stipulated
therein.
The respondents’ stance, in this regard, can be
summarized in the well- known phrase that ‘
a
litigant cannot both approbate and reprobate’.
More simply it cannot blow hot and cold at the same time- deny the
contract whilst for other purposes seeking to rely on it.
[24]
[103]
I accordingly find that the denial of the existing agreements by the
second and third respondents of the actual
agreements that have been
put up, fall into the category of bald, uncreditworthy denials
designed to create fictitious disputes
of fact
[25]
.
The fact that the first respondent recognised the agreements
corroborated the applicant’s version in material respects
and
is consistent with the probabilities. The version of a bare denial by
the second and third respondents in this regard does
not raise a bona
fide factual dispute.   I find that the agreements are
valid. This finding relates to the first leg
of the issues relating
to the agreements.
Is there a valid
contract of learnership to implement three phases of the program?
[104]   This
question has been dealt with in a two- pronged fashion by the
respondents. First, the respondents denied
that there was going to be
a third phase at all. Second, they contended that if there was a
third phase there is no need to implement
it due to the fact that the
applicants have reached the threshold values in phase 3 and their
CIDB grading would render any negotiated
award unlawful or that their
CIDB grading points to the completion of the learnership.
[105]   On
record the respondents vacillated in dealing with this issue. The
more they dealt with the implementation issues
raised by the
applicants their dispute of a three- phased program was either
conceded or termed differently. For example, they
referred to
it
as three stages. I shall refer to a few examples just to demonstrate
the point I make herein:
105.1
Ms Abrahams for the Minister stated:
‘
30.
Unfortunately, after a diligent search, I was not able to obtain a
copy of the specific management plan which the MOA
contemplates would
be attached to it. However, generally in accordance with management
plans that were formulated for learnership
programmes during 2005 and
2006, learnership programmes were typically structured as follows:
30.1
The programme would consist of an appropriate mix of theoretical and
practical components. The theory component would be provided
through
three separate classroom sessions.
30.2
Three separate projects would be awarded
to each of the learner contractors by the participating provincial
public works department to enable them to complete actual contracts
for training purposes and to obtain the relevant experience
to
advance as emerging contractors.
31.
In this regard, I attach hereto a copy of a management plan dated
September 2005 that was applied by the   Department to
EPWP
learnership programmes during that period, marked Annexure E.
32.
I pause hereto mention that any reference to phase 3 of the Programme
in the Applicant’s founding papers    and
in
this affidavit, is a reference to the third and final practical
component of the Programme referred to above, i.e .the last
of the
three projects to be awarded to the learner contractors. (my
emphasis)
105.2
What is contained in paragraphs 30 to 32, quoted above, support the
applicants case that there
was a third phase to the program.
105.3
In a letter addressed by the DG to Mr Silinga, Mr Mlawu and others
which is referred to
under the background facts, he stated,
inter
alia
, when describing the program:
“
In
terms of the learnership, each learner contractor was to
receive
three (3) onsite training projects
and
undergo the National Certificate in Construction Contracting at NQF
level 2. To date, the learner contractors
have
received two (2) of the three (3) onsite training projects
.
NDPW as the coordinator of the EPWP would hereby like to enquire when
the third (3
rd
)
project will be made available. The second (2
nd
)
projects were completed in 2010 already.”  (my emphasis)
105.4
A similar letter was addressed to the Head of Department of the
second respondent, Mr J. Mlawu
and the exact wording was used.
105.5
Ms Irene Nemasetoni conveyed to the applicants that the Director –
General of the national
department of Public Works had “
approved
the implementation of the 3
rd
(third) phase
of the learnership programme
.”  It was clearly the
understanding of the state respondents and the learners that there
was a 3
rd
phase to the program.
105.6
The second and third respondents stated:
“
48.1
The programme was designed into
three
phases
in respect of which
values in monetary terms were attached as follows:
48.1.1
phase 1 :  R250 - R500 000,
48.1.2
phase 2 : R500 000 -  R2, 000 000;
48.1.3
phase 3 :  R1m -  R5m.” ( my underlining )
105.7
At a meeting held at Coega on 12 December 2011 between Coega, the
second respondent, third respondent
and Absa Bank. The meeting itself
was described as:
EPWP Phase 3 Project Meeting”.
As a
way forward there were certain resolutions but the one that is
important for the purposes of this case is “
CDC had already
sent correspondence to consultants to send recommendations to CDC on
performance base on Phase 3.”
[106]   All the
evidence before me demonstrates that there was no separate contract
that had to be concluded with the
learners that would specify phase
3.  Phase 3 just like phases 1 and 2 relates to implementation
of the program.  That
is an issue that falls within the powers
of the state organs. The state organs would not have agreed with the
learners on that
issue except to convey to them how the program would
be structured.  There is correspondence that confirms that
position.
The fact that phase 2 was completed in 2010 is demonstrable
of the fact that the parties continued on the same trajectory with
the program as it was in 2006. There is no evidence at all to suggest
that in 2008, after two years of the signing of the agreements,
that
new or further agreements were signed between the provincial
department of Public Works and the learners. It is common cause
that
phase 2 was completed during 2010.
[107]
The management plan encompassed everything, namely, the role of the
state entities or public bodies or the stakeholders,
the purpose of
the learnership, recruitment and selection of learners, the duration
of the learnership, access to finance, mentorship
etc. To single out
the learner agreements to the exclusion of all the other agreements
that related to the program is to ignore
the purpose of the program,
namely, to develop 51 contractors from the Eastern Cape through a
learnership program. Any attempt
to ignore all the other relevant
documents placed before me that were intended to give effect to the
desired purpose of the program
would amount to viewing the program
out of context and is, with respect, mischievous. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[26]
,
Wallis JA stated:
“
[24]
The sole benefit of expressions such as ‘the
intention of the legislature’ or ‘the intention
of the
parties’ is to serve as a warning to courts that the task they
are engaged upon is discerning the meaning of words
used by others,
not one of imposing their own views of what it would have been
sensible for those others to say. Their disadvantages,
which far
outweigh that benefit, lie at opposite ends of the interpretative
spectrum. At the one end they may lead to a fragmentation
of the
process of interpretation by conveying that it must commence with an
initial search for the ‘ordinary grammatical
meaning’ or
‘natural meaning’ of the words used seen in isolation, to
be followed in some instances only by resort
to the context. At the
other it beguiles judges into seeking out intention free from the
constraints of the language in question
and then imposing that
intention on the language used. Both of these are contrary to the
proper approach, which is from the outset
to read the words used in
the context of the document as a whole and in the light of all
relevant circumstances.
34
That
is how people use and understand language and it is sensible, more
transparent and conduces to greater clarity about the task
of
interpretation for courts to do the same.”
[108]   Phase 3 was
not only conceded by the second and third respondents as demonstrated
in the table with values but was
supported by the Director- General
in his correspondence to the various respondents and communicated to
the applicants. The authority
of the Director- General to,
inter
alia,
convey the existence of the third phase to the applicants
and to request the other respondents to give effect thereto is not
challenged.
[109]
In
Chisuse
v Director – General, Department of Home Affairs
[27]
,
the Constitutional Court was dealing with statutory interpretation
and held that it is now settled approach that interpretation
is a
unitary exercise. This means that interpretation is to be approached
holistically; simultaneously considering the text, context
and
purpose.  The same approach applies herein.
[110]
Both the course of conduct of the parties including those of Coega,
the implementing agent, their dealings,
and oral agreements,
demonstrate that there was going to be a third phase to the program.
I accordingly find that the learnership,
based on all the evidence
and the respondents’ versions included phase 3 in order for it
to be complete. Any purported dispute
of the 3
rd
phase is
not supported by the respondents’ own version and the facts
relied upon by them.  It does not, in my view,
taking all the
evidence in its totality, constitute a genuine dispute of fact and is
accordingly rejected.  To direct that
evidence must be led on an
issue that, the respondents have admitted, as demonstrated above,
will serve no purpose instead will
prolong this litigation and
escalate costs unnecessarily.
Legitimate
expectation
[111]
Invitations to members of the public, such as the one that was issued
herein whose goal was to invite members
of the public to , inter
alia,  participate in the state programs which are designed to
achieve specific identified goals
for the good of the country ,
with the aim to implement policies that relate to, amongst others,
attempts to enhance the ability of the emerging
contractors and the youth aspiring to get into the construction
industry with more
future that will enable them to compete
effectively in the construction market; and  to assist aspiring
building contractors
to gain skills while they run projects and
increase their capacity to earn income, all which will result in them
being fully fledged
building contractors with requisite business and
technical skills, are never to be viewed lightly.
[112]
That becomes even more important when the whole purpose of the
invitation
is
to level the playing fields so that there is no monopoly within the
construction industry, to alleviate levels of unemployment,
most
importantly to build requisite skills for participation in that
industry.
[113]
Where the State abandons such a publicly made
commitment
without
achieving the desired outcomes, it is not wrong, to hold the State to
that invitation whilst keeping the boundaries insulating
the
executive from the separation of powers harm
[28]
.
In
Economic Freedom Fighters and Others v Speaker of the National
Assembly and Another, the Constitutional Court held:
“
[22]
Similarly,
the National Assembly, and by extension Parliament, is the embodiment
of the centuries-old dreams and legitimate aspirations
of all our
people.  It is the voice of all South Africans, especially the
poor, the voiceless and the least˗ remembered.
It is the
watchdog of State resources, the enforcer of fiscal discipline and
cost-effectiveness for the common good of all our
people. It also
bears the responsibility to play an oversight role over the Executive
and State organs and ensure that constitutional
and statutory
obligations are properly executed. For this reason, it fulfils a
pre-eminently unique role of holding the Executive
accountable for
the fulfilment of the promises made
[33]
to
the populace through the State of the Nation Address, budget
speeches, policies, legislation and the Constitution, duly
undergirded
by the affirmation or oath of office constitutionally
administered to the Executive before assumption of office.
Parliament
also passes legislation with due regard to the needs
and concerns of the broader South African public.  The
willingness and
obligation to do so is reinforced by each member’s
equally irreversible public declaration of allegiance to the
Republic,
obedience, respect and vindication of the Constitution and
all law of the Republic, to the best of her abilities.  In sum,

Parliament is the mouthpiece, the eyes and the
service-delivery-ensuring machinery of the people.  No doubt, it
is an irreplaceable
feature of good governance in South Africa.”
(foot notes omitted).
[114]
Although the details of the implementation of the program do not form
part of the agreements signed with
the learners, they appear on the
body of the evidence relied upon by the parties. The fact that there
were no grading requirements
at the invitation stage is consistent
with the purport of the program. The uncontroverted evidence is that
although the agreements
did not specify the implementation of the
program, the state respondents communicated to the applicants the
three phased program
in various forms as indicated above, the
Minister communicated that to them, the DG communicated that, the
senior officials did
too. The applicants do not dispute that the
third phase will mean an award of projects to them.
That,
of necessity enjoins the powers that only the DG and the executive
possess. Those powers do not reside with the court. The
third phase
was not only approved by the DG but a list of projects for the third
phase were submitted to Coega but were subsequently
withdrawn on the
basis that the stakeholders were awaiting their budgets. Taking into
account those approvals and identification
of projects there would be
no harm to the separation of powers doctrine if this Court orders
that steps must be taken to implement
the third phase.  It had
been approved already and there is no need to reinvent the wheel.
[115]
Clause 4 of the Learner contract of employment refers:
Employment
under a learnership
is based on
the reasonable
expectation
of continuing work availability to the
employer for the duration of the learnership period, linked to the
provisions of the relevant
employment contract
. (my emphasis)
[116]
Clause 4 also deals with termination of that agreement of the
Learnership agreement. It provides, amongst others, that
it would
terminate if the learner
successfully completes the learnership
.
[117]
In
Duncan
v Minister of Environmental Affairs and Tourism
[29]
, Brand JA defined the requirements for legitimate expectation as:
“
[15]
Reliance on the doctrine of legitimate expectation for
any purpose presupposes that the expectation qualifies
as legitimate.
The requirements for the legitimacy of such expectation have been
formulated thus:
(a)
The representation inducing the expectation must be clear,
unambiguous and devoid of any relevant qualifications.
(b)
The expectation must have been induced by the decision maker.
(c)
The expectation must be reasonable.
(d)
The representation must be one which is competent and lawful for the
decision-maker to make.
[118]
These requirements have been met by the applicants. The learners were
selected with a view to upskill them
by assisting them to get into
the construction with more future that will enable them to compete
effectively in the construction
industry.  They would be fully
fledged building contractors with requisite business and technical
skills. They would get certification
or will graduate upon completion
of the project.   The two phases were completed and only
phase 3 is outstanding. These
expectations were induced by the state
organs, the first, second and third respondents in their
representations to the selected
learners. They were reasonable and
consistent with the purpose of the program.  The learnership is
competent in law and consistent
with the powers that the Director –
General has and it was duly approved by the State Tender Board
.
In my view, the applicants met all the
Duncan
requirements on the legitimate expectation point.
[119]
Heher JA, in
Phillips
and Others v National Director of Public Prosecutions
[30]
found
that the reason why the representation underlying the expectation
must be 'clear, unambiguous and devoid of relevant qualification'
is
a sensible one. It accords with the principle of fairness in public
administration, fairness both to the administration and
the subject.
It protects public officials against the risk that their unwitting
ambiguous statements may create legitimate expectations.
It is also
not unfair to those who choose to rely on such statements. It is
always open to them to seek clarification before they
do so, failing
which they act at their peril.  The court found that the first
question is factual – whether in all the
circumstances the
expectation sought to be relied on is reasonable. That entails
applying an objective test to the circumstances
from which the
applicant claims the expectation arose. Only if that test is
fulfilled does the further question – whether
in public law the
expectation is legitimate – arise.
Are all 68 applicants
before court entitled to the 3
rd
phase?
[120]   The
starting point will be to examine the request by the Director –
General (DG) for the national Department
of Public Works dated 8
September 2003 and the approval dated 15 October 2003, by the
National Treasury relied upon by the Minister.
The Director-
General requested from the Office of the State Tender Board, National
Treasury ‘
approval for the allocation of infrastructure
projects as on- site training projects for emerging contractors as
part of structured
SETA- registered learnerships
.’
[121]   In
motivating for the request the DG highlighted that the approval was
sought in order to develop contractors to a
level at which they can
compete successfully in the open market. He sought approval for the
departments to enter into negotiated
contracts with learner
contractors for the on-site training elements of their learnership.
The DG set out certain conditions, namely,
as long as:
a)  the learners are
part of a structured learnership programme under a departmental,
municipal, provincial or national emerging
contractor development
programme;
b)  there has been
an open and transparent process of selecting the learners for the
learnerships;
c) the learners
participate in the learnership programme for a predetermined limited
period of time, following which they must either
graduate or exit
from the learnership programme;
d) the learnerships are
formally registered with the relevant Sector Education and Training
Authority (SETA)
[122]
National Treasury informed the DG, Dr SD Phillips,
inter alia
,
that his request served before the Board on 09 October 2003 where the
Board approved the submission in its entirety.
[123]   During
November 2003, Cabinet approved the conceptual framework of the
Expanded Public Works Programme (EPWP).
The objective of the EPWP was
to utilize public sector budgets to create additional work
opportunities coupled with training.
The Management plan was
formulated and was applied with effect from September 2005.  The
Minister also relies on the MOA referred
to earlier in this judgment,
which was concluded in March 2006.
[124]   The
parties contemplated a three- phased implementation approach of the
program.  Although they differ in
how they refer to it, the
record reveals that the difference of opinion in this regard is, with
respect, more imaginary that real.
The third phase is regarded by the
respondents as
the third and final practical
component of the program. It must follow therefore that it must be
implemented to finalize the program.
[125]   According to
the learner contract of employment, there are two grounds that would
lead to the termination of the agreement
between the provincial
department of Public Works and the learners. Those are contained in
clause 3 of the agreement. They are
that: the contract would
terminate when the learner has completed a learnership or when the
learnership agreement has been cancelled.
It is not the second
and third respondents’ defense that they either cancelled the
agreements or that the learners completed
the learnership.
[126]   The
respondents submitted that the applicants who are cited in the
application are already established contractors
with CIDB grading
above the grades targeted by learnership programs and are registered
in multiple classes of construction work
and have received the full
benefit of the department’s contracts development program.  In
my view, if there are such
applicants, they would fall outside the
program and they would not be entitled to benefit from the 3
rd
phase.  There must be proper identification of those applicants,
the nature of the work given to them, the duration, their
performance
etc. Those applicants must be assessed by the training providers and
be issued with the necessary certificates. If
any of the applicants
are already competing in the industry that would mean that what was
sought to be achieved by the learnership
program has been achieved.
Steps would have to be taken by the respondents to award to those
applicants the necessary certification.
[127]
The respondents, as stated above, identified some of the
learners as not qualifying for further practical training
but are
silent about those who do not have higher CIDB grading.  Those
must be identified properly so as to assess their level
of competence
in relation to the learnership program.  The respondents must
also take steps to have the learners assessed
by an accredited
training provider. Should they be regarded as competent they should
be awarded a competency certificate to stipulate
that they have met
the requirements to be awarded the NQF Level 2 qualification.
[128]
The applicants raised many issues relating to budget and projects for
the third phase in their replying affidavit.
Those are all
matters that fall within the powers of the respondents. It is not
open to this court to dictate to the respondents
how they should
implement the third phase.  They need to be afforded an
opportunity come up with a plan to deal with those
applicants who
qualify for the practical leg of the third phase and details of how
they will implement the third phase.
In
my view, “
how”
the implementation process of the third phase is to be done, and how
many of the applicants should participate therein, are issues
that
constitute a genuine dispute between the parties.
[129]
That means that these disputed facts cannot be resolved on these
papers. It is an elementary rule of motion proceedings
that an
applicant cannot succeed in the face of a genuine dispute of fact
that is material to the relief sought. Conflicting averments
under
oath cannot be tested on affidavit but only by oral evidence as
decided in
Plascon-Evans
Paints Ltd v van Riebeeck Paints (Pty) Ltd
[31]
.
[130]
The respondents contend for the dismissal of the application with
costs. I am not persuaded that this is a case that must
be disposed
of in that fashion because
the program was
approved by Cabinet and the State Tender Board. It is expected that
where the State has embarked on a learnership
for noble reasons, such
as this one, the learnership programme must be completed. The
applicants are protecting the rights that
accrued to them when they
were selected for the project and upon the implementation of phases 1
and 2.  Those rights are not
absolute. The program was not
designed to do more than what it was intended for.  Where the
applicants are no longer suited
for the 3
rd
phase of the program due to their high CIDB grading, amongst others,
the respondents must indicate how they will be dealt with
so as to
enable them to receive relevant certification.
CIDB
grading
[131]
As soon as projects were allocated to the learners their status
changed and their performance had to be measured.
It appears
that the State respondents applied the CIBD grading.  How the
programme was to be implemented depended on
the policies of the
state. The applicants seem to think that they have a say in this
regard, to dictate, amongst others, that the
CIDB grading should not
apply.  This aspect cannot be regarded as a real dispute because
implementation of the program was
never agreed to with the
applicants.  It is the State respondents that agreed in the MOA
and the management plan, how it would
be implemented. That
responsibility, with respect, remains with the State respondents and
not the applicants.
[132]
The first respondent relied on the CIDB grading and contended that
from 2005 government departments were constrained
by the Treasury
Regulations 16 A in the manner in which construction projects were
allocated to learner contractors.
[133]
It appears from the evidence that there was both technical and
financial benefits to the learners in phases 1 and   2.
A
schedule of each project given to the learners and the values
thereof, in annexure ‘H’, were not challenged by the

applicants. However, they dispute the allegation that as a result of
their monetary benefit in phases 1 and 2 they are not entitled
to the
third phase.  As aforementioned the schedule addresses only
issues relating to 21 learners and is silent about the
rest of the
learners who are part of this application. The schedule does depict a
landscape that has changed from the one that
existed when the
agreements were entered into.  It is also apparent from the
schedule attached by the Minister that there
was CIDB grading of the
contractors.
[134]
According to the applicants there should be no CIDB grading. That is
not their call to make. The designers and
implementers of the program
deemed it fit to subject learners to CIDB grading.  The CIDB
grading was not a novel consideration
because the applicants
themselves were alive to it. They stated,
inter alia
,
“
Some
of them abandoned their companies that already had a higher CIDB
grading in order for them to start new close corporations
and to work
their way up again to attain CIDB grading
.”
If the purpose was to
upskill the learners to reach a point where they would be able to
compete fairly in the construction industry,
it is axiomatic that
they had to be measured by using the same tool used for each and
every player in that industry, being, the
CIDB grading.
[135]
Although phase 3 was contemplated by all the parties
concerned, as I have found, there are deceased learners, deregistered

contractors, those learners that are regarded as having exceeded the
phase 3 thresholds. Who participates in phase 3 is an issue
that
cannot be decided on these papers.  A finding that all 51
learners would be entitled to be awarded contracts for phase
3 is not
a matter that falls within the province of this court.  Having
said that the programme must be finalised to enable
the learners to
receive their certification by CETA. It is within the powers of the
state respondents to design a plan for the
third
phase
in a manner that will be compliant with the applicable legal
prescripts.
[136]
The letter of Mr Jan Breytenbach, relied upon by the first
respondent, does not in anyway prohibit negotiated
contracts and any
suggestion that it does is , with respect, misleading.   In
any event the letter was addressing a request
from the Limpopo
province and not from the Eastern Cape. Section 217 (2) of the
Constitution provides:
“
217
(1) ….
(2)
Subsection(1) does not prevent the organs of state or institutions
referred to in that subsection
from implementing a procurement policy
providing for –
(a)
categories of preference in the allocation of contracts; and
(b)
the protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3)
National legislation must prescribe a framework within which the
policy referred to in subsection
(2) must be implemented.”
[137]
I do
not believe that the Director – General, who is the accounting
officer of the national department of Public Works, would
have
approved the third phase, according to Ms Nemasetoni, a senior
official, if he possessed no such powers and had no budget
for it.
In
GNA
Automation CC and Another v Provincial Tender Board, Eastern Cape and
Another
[32]
the
following was said:
“
Powers may be
presumed to have been impliedly conferred because they constitute a
logical or necessary consequence of the powers
which have been
expressly confirmed because they are reasonably required in order to
exercise the powers expressly confirmed or
because they are ancillary
or incidental to those expressly confirmed.”
[138]
There is another reason why the project must be completed. The
completion thereof displays commitment on the part
of the State to
upskill the learners.  For as long as the learnership remains
incomplete, there will be no certification and
that will undermine
what was intended by former President Mbeki and the Cabinet: to
ensure that these learners “
through the programme are drawn
into productive work and that they gain skills while they work and
thus take an important step to
get out of the pool of the
marginalised”.
[139]
Failure to complete the learnership would also mean that the State
expended millions of rands in the programme
and thus invested in the
social infrastructure that had no certification in the end. That is
not empowerment as it was envisaged
by the government.  To leave
it incomplete undermines the learners and the purpose for which the
programme was intended.  I
am aware that there was a threshold
of R1m to R5 million for the third phase.  The respondents’
stance that the phase
3 threshold values have been exceeded are made
in a general manner without sufficient detail.  To the extent
that most of
the learners have done work equivalent to the values
prescribed for phase 3, the respondents must detail a plan on how
they intend
to deal with them in relation to their certification to
signify completion of the program in so far as it relates to them.

I trust0 that the order I intend to make will lead to those issues
being addressed sufficiently.
[140]
Lagrange
J,  in  Mtimkulu v The CCMA and others
[33]
, stated :
“
There was no
subsequent written contract concluded which sets out in any detail
the terms governing the relationship after the expiry
of the initial
contracts on 31 March 2006. It is also noteworthy that the sole basis
advanced in the memo for extending the relationship
is related to the
expectation that might have been created in relation to payment for
the learner’s studies: no mention is
made of the need for them
to still have more practical exposure to the work environment or to
acquire some level of expertise in
a particular area of work relating
to their academic qualifications.
The arbitrator also
failed to require the employer to prove that the object of the
learnership contract had been achieved at the
time it was terminated.
The arbitrator ought also to have required proof of prior proceedings
relating to the employer’s
allegation that he was not at work.”
[141]
The above sentiments apply equally herein. Evidence must be
led to determine and identify,
inter
alia,
the number of applicants who qualify for phase 3 and to deal with all
the matters that will be listed in the Order to be made as
there is
dearth of information in relation to those matters.  In
Black
Sash Trust v Minister of Social Development
[34]
,
the Constitutional Court when it was faced with a situation where
there was insufficient information from SASSA, it directed that
the
Minister and SASSA file, inter alia,  reports setting out their
plan for payment of social grants.   In order
to ensure a
speedy finality of this litigation I shall direct a hearing, if it
still proves to be necessary, after the plan has
been submitted in
terms of the order I intend to make.
[142]
These
issues are inextricably linked to the
implementation of the third phase.  I intend to grant the
implementation relief but
suspend it pending submission of the plan
on the implementation of the third phase by the respondent, which
plan must encompass
all the matters I have raised herein. Upon
submission of the plan to this Court the parties will be afforded an
opportunity to
comment thereon. Should there be a need for oral
evidence that will be arranged.  The reason for not directing a
hearing of
oral evidence at this stage is because there is scarcity
of information on the implementation of phase 3 and that will
elongate
the hearing at a huge cost to the parties.
[143]
There are various factors that would influence the decision on
the implementation of phase 3 and how it should be implemented.
I
deal with them below. The respondents in their plan will have to
address,
inter alia,
the following factors, in no particular
order:
[144]
Factors to be addressed in the implementation plan:
(a)
A list of deceased learners and
deregistered contractors;
(b)
The effect of the CIDB Grading on phase 3;
(c)
The number of the remaining learners
(persons) from the original 51 learners; taking into account those
that are deceased and deregistered;
(d)
The number of remaining learner
contractors (entities) attached to each of the remaining learners;
(e)
A list of learners that were disqualified
from the program and the reasons therefor, together with a list of
those learners who
abandoned the program, if any;
(f)
To identify those learners who are no
longer ‘learners’ as envisaged in the program;
(g)
To identify learners who have received
projects that exceed the threshold values for phase 3. (Such
information to specify dates,
nature of the projects, amounts paid to
the learner, identity of the training provider, CIBD grades and any
other relevant information
in this regard;
(h)
The nature of further practical training
experience required by any of the learners, if so, which learners (to
be identified) and
the type of practical training.
(i)
Identify learners for certification and
approximate time for the award of such certification;
(j)
To identify projects for phase 3 and the
duration thereof.
(k)
To determine and source budget allocation
for phase 3.
(l)
To indicate whether there were assessment
reports of the learners by the training providers? All those to be
summarized to indicate
the type of training, project allocated,
performance of the learner and any areas where further practical
training is required
by any of the learners.
(m)
to identify learners to be assessed by an
accredited training provider to determine their competence to be
awarded a competency
certificate to stipulate that they have met the
requirements to be awarded the NQF Level 2 qualification.
(n)
time frames for the implementation of the
third phase, and any other factors that are relevant to phase 3.
ORDER
[145]
In the circumstances I make the following Order
:
1.
The First, Second and Third respondents are directed to take
the
necessary step to implement Phase 3 of the Eastern Cape School
Building Expanded Public Works Programme, which is the final
phase of
the programme, which will enable the Construction Sector Education
and Training Authority (CETA) to award the NQF Level
2 to the
applicants.
2.
The First, Second and Third respondents are directed to file
reports,
within
(30)
THIRTY
days hereof, on affidavit, setting
out how they plan to implement phase 3, taking into account relevant
factors, amongst others,
listed in paragraph 144 above.
3.
The Order in
paragraph 1
is suspended for a period of
(60)
Sixty days
pending the filing of the reports mentioned in
paragraph 2 of this Order.
4.
Any other matters not dealt with herein in relation to the
application are reserved pending compliance with this supervisory
order.
5.
All issues of costs are reserved until conclusion of these
proceedings.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the APPLICANTS
:
Adv Ntsepe
Instructed
by
:
TYOPO ATTORNEYS
c/o
:BACELA
BUKULA ATTORNEYS
115
CAMBRIDGE STREET
KING
WILLIAMS TOWN
TEL:
083 285 6761
EMAIL
tyopomxilisi@gmail.com
For
the 1
st
Respondent
:
STATE ATTORNEY, GQEBERHA
29
Western Avenue
GQEBERHA
TEL:
041 585 7921
EMAIL:
MiSwart@justice.gov.za
c/o
: SQUIRES SMITH & LAURIE INC.
44
TAYLOR STREET
KING
WILLIAMS TOWN
TEL:
043 642 3430
FAX:
043 643 3956
EMAIL:
kuls@squires.co.za
REF:
MRS. AL FRIEDRICHS/ka/MAT111346
For
the 2
nd
& 3
rd
Respondents
:
Adv
Rocke SC together with Ms Appels
Instructed
by
:
STATE ATTORNEY, EAST LONDON
OLD
SPOORNET BUILDING
17
FLEET STREET
EAST
LONDON
REF:
161/22-P13 (MRS TYANI)
c/o
:
SHARED LEGAL SERVICES
32
ALEXANDRA ROAD
KING
WILLIAMS TOWN
For
the 4
th
Respondent
:
Mr Macozoma
Instructed
by
:
BATE CHUBB & DICKSON INC.
Suite
3, Norvia House
EAST
LONDON
TEL:
043 701 4500
EMAIL:
lindeka@batechubb.co.za
c/o
:
GORDON McCUNE ATTORNEYS
36
TAYLOR STREET
KING
WILLIAMS TOWN
REF:
MACOZOMA/lg/C4/MATT4416
Matter
heard on
:
20 June 2024
Judgment
delivered on
:
15 October 2024
[1]
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009] ZACC 14
delivered on 3 June 2009.
[2]
Norvatis
v Maphil (20229/2014)
[2015] ZASCA 111
(3 September 2015) para 35.
[3]
National
Director of Public Prosecutions v Phillips and Others
2002 (4) SA 60 (W) para 28.
[4]
South
African Veterinary Council and Another v Szymanski
2003 (4) SA 42
(SCA) at para 20.
[5]
Duncan v Minister of Environmental Affairs and Tourism and
Another
2010 (6) SA 374
(SCA) at para 15.
[6]
Administrator, Transvaal
v Traub
1989 4 SA 731(A).
[7]
Nortjie
v Minister van Korrektiewe Dienste
2001
(3) SA 472
(SCA) para 14.
[8]
ACSA
v Imperial Group 2020(4) SA 17 (SCA).
[9]
Duncan v Minister of Environmental Affairs and Tourism
2010 (6) SA
374
at para15 and also on Administrator, Transvaal and Others v
Traub and Others [1989] 4 All SA 929
[10]
Hottentots Holland Motors (Pty) Ltd v R 1956 1 PH K22 (C) ; and also
on  Hayter v Ford ( 1895) 10 ECD 61 for the contention
that the
applicants failed to establish any unconditional offer made by the
second and third respondents.
[11]
Bowman
N.O. v De Souza Roldao
1988 (4) SA 326
T; see also
Director
of Hospital Services v Mistry
1979
(1) SA 625
(A) at 635;
Pountas' Trustee
v Lahanas
1924 WLD 67
at 68.
[12]
Zeelie
v General Accident Insurance Co Ltd
1993 (2) SA 776
(E) at 779 D-F.
[13]
Nel v
Waterberg Landbouwers Ko-operatieve Vereenigin
g
1946 AD 597
at 607.
[14]
Karroo
Meat Exchange Ltd v Mtwazi
1967 (3)
SA 356 (CPD).
[15]
Orphanides
v
Stratton
1953 (1) SA 152
(SR) approved in Olivier v Botha &
Another 1960 (1) SA 678 (O).
[16]
DR,
August
2013: 38 [2013] DE REBUS  150 by Perino Pama, BA LLM (UCT)
attorney at Mosdell Pama and Cox Inc. in Plettenberg Bay.
[17]
Miller and Others v Nafcoc Investment Holdings Co. Ltd and Others
2010 (6) SA 390
(SCA) at para 11.
[18]
Insamcor (Pty) Ltd v Dorbyl Light and General Engineering (Pty) Ltd
2007(4) SA 467 (SCA) at 475C.
[19]
ABSA
Bank v Zalvest Twenty (Pty) Ltd
2014 (2) SA 119
(WCC) at para 9; See
also: Absa Bank Ltd v Kapuda Properties 14 CC and Others
(2019/16373)[2023] ZAGPJHC 209 ( 23 March 2023)
(judgment by Tsautse
AJ).
[20]
Christie’s Law of Contract , 8
th
Edition,  page 594.
[21]
Munnikhuis v Melamed NO ,1998(3) SA 873(W) 887 E -888D
[22]
Munnikhuis,
above, page 887 para I – J.
[23]
Makate
v Vodacom (Pty) (Ltd)
(CCT52/15)
[2016] ZACC 13
;
2016 (6) BCLR 709
(CC);
2016 (4) SA 121
(CC) (26
April 2016).
[24]
TwentyThird
Century Systems (Pty) Ltd and Another v SAP Africa Region (Pty) Ltd
(4095320) 2022 ZAGPJHC 306 (16 May 2022) para
26.
[25]
In
African
National Congress v Ezulweni Investments (Pty) Ltd[25] ,
(979/2022)
[2023] ZASCA 159
(24 November 2023).
[26]
Natal
Joint Municipal Pension Fund v Endumeni Municipality (920/2010)
[2012] ZASCA 13
; [2012] 2 ALL SA  262 (SCA) ;2012(4) SA 593
(SCA) (16 March 2012) at para 24.
[27]
Chisuse v Director – General, Department of Home Affairs
2020
(6) SA 14
(CC) para 52.
[28]
In Economic Freedom Fighters and Others v Speaker of the National
Assembly and Another (CCT76/17)
[2017] ZACC 47
;
2018 (3) BCLR 259
(CC);
2018 (2) SA 571
(CC) (29 December 2017) at para 22.
[29]
Duncan
v Minister
2010 (6) SA 374
SCA and para 15 ;
(
See
:
eg National
Director of Public Prosecutions v Phillips
2002
(4) SA 60
(W)
para 28; South African Veterinary Council v Szymanski
2003
(4) SA 42
(SCA)
para 19; Woolf, J Jowell, A L
e
Sueur, De Smith's Judicial Review 6 ed (2006) paras
12-029 et seq.)”
[30]
Phillips and Others v National Director of Public Prosecutions
(
202/2002)
[2003] ZASCA 74
;
[2003] 4 All SA 16
(SCA);
2003 (6) SA 447
(SCA);
2003 (2) SACR 410
(SCA) (4 September 2003).
[31]
Plascon
-Evans
Paints Ltd v van Riebeeck Paints (Pty) Ltd
(53/84)
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
;
1984 (3)
SA 620
(21 May 1984.
[32]
GNA Automation CC and Another v Provincial Tender Board, Eastern
Cape and Another 1998(3) SA 45 SCA at 51H.
[33]
Mtimkulu
v The CCMA and others, Case no. JR 1212-08, Labour Court,
Johannesburg.
[34]
Black Sash Trust v Minister of Social Development
[2017] ZACC 8
;
2017 (3) SA 335
(CC).