1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 8421/2023
(1)
(2)
(3) REPORTABLE : YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
........................ . -
-,r -'
DATE: 16/04/2025 SIGNATURE.. . .....
In the matter between:
T J MACHETE ATTORNEYS INC
And
BA-PHALABORWA MUNICIPALITY
GILBERT MOTEDI ATTORNEYS INC
MAFA AND ASSOCIATES INC
CHIDI ATTORNEYS
MODJADJI RAPHESU INC ATTORNEYS
MABOKU MAN GENA IN CORPORA TED Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
NOKO MAIMELA INCORPORATED
MALOKA SEBOLA INC 2
BRIGHT RIKHOTSO INCORPORATED
KGOHLISHI ABIE MAMABOLO ATTORNEYS INC
MAKHUVHA E.M. ATTORNEYS
MOHALE IN CORPORA TED
MOHUBA INC
LUBISI ATTORNEYS INC
MMMG ATTORNETS
MB MABUNDA INCORPORATED
VERVEEN ATTORNEYS Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
Thirteenth Respondent
Fourteenth Respondent
Fifteenth Respondent
Sixteenth Respondent
Seventeenth Respondent
Delivered : This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses . The date for the hand-down is
deemed to be 16 April 2025.
JUDGMENT
Makoti AJ
Introduction
[1] T J Machete Attorneys Incorporated is the applicant. It impugns in this review
application the decision of Ba-Phalaborwa Local Municipality (the
Municipality) , as the respondent, to exclude it from participation in a tender for
3
legal services. The specific orders sought by the applicant in this matter are
that:
(1.1] the decision taken on 22 August 2023 be reviewed and set aside;
(1.2] the decision be remitted to the Municipality for consideration by the Bid
Evaluation and Adjudication Committees; and
(1.3] costs be awarded against the Municipality.
[2] There are in all seventeen respondents who are cited in the application . Only
the Municipality has filed opposing papers. Some of the respondents have
filed notices to abide the decision, while others elected to stay out of the
litigation.
Grounds for review
[3] What gave rise to this application is the applicant's exclusion from
participation in the tender. Due to the impugned decision being administrative
in nature, the application is predicated on the provisions of the Promotion of
Administrative Justice Act, 2000 (Act No. 3 of 2000). The applicant initially
contended in its founding affidavit that the impugned decision to exclude it
from participation in the tender was arbitrary and capricious.
[4] The grounds of review the were in the founding affidavit were retained in the
applicant's supplementary papers. On any one of those bases, according to
the applicant's contention, the decision ought to be reviewed, set aside. Then,
if the Court agrees with the applicant's viewpoint , the offending decision
4
should be remitted to the Municipality's for both the bid evaluation and
adjudication committees to consider the tender submitted by the applicant.
[5] The gravamen of the applicant's case is that its tender was not considered by
the Municipality's bid committees. This is the main issue that calls for
determination. An additional ground of review was raised in the
supplementary affidavit. The following is the argument that is drawn from the
applicant's supplementary affidavit:
"9. I confirm that the applicant's bid was submitted to the respondent on or about
23/09/2022 and therefore had to be considered by the applicant. The failure by
the respondent to consider the applicant's bid is patently unfair and contrary to
section 217 of the Constitution. The failure also constitutes a failure by the
respondent to take into account relevant considerations."
[6] Of course, the Municipality contends otherwise. It asserts that the applicant's
bid was considered by its committees. Alongside its merit defenses, the
Municipality raised the points in limine of non-joinder of interested parties and
the question of non-compliance with section 62 of the Local Government:
Municipal Systems Act, 20001 (the Systems Act) I will revisit these technical
points after setting out the facts.
Summary of facts
[7] The case at issue concerns the appointment through tendering of law firms
into the Municipality's panel of legal service providers. The areas of service
are in public law, town planning and environmental law, building and
construction law, labour law, debt collection law, property law, conveyancing
and notarial registration. It is common cause that the tender was advertised
Act No. 32 of 2000.
5
on 19 August 2022. The applicant's bid was submitted on or about 23
September 2022, and that too is common cause. The submission of bids
closed on that date.
[8] Bidders were asked to separate their bids when tendering for different
categories. They were told that:
"N.B. A separate tender document in a separate file must be submitted for each
category tendered for clearly marked as such e.g. Tender for a panel of
attorneys for three years, Tender number ..... : Category: Town Planning and
Environmental Law Services etc. Do not, under any circumstances lump
everything in one file."
[9] Upon the closing of the tender, on 09 November 2022 the Municipality's
evaluation committee convened to consider the bids. A report of that
committee was produced on 17 November 2022, specifically dealing with bids
for the public law and municipal services category. The applicant had been
among the 19 bidders which tendered for that category.
[10] From the 19 bidders, eight bids were recommended for adjudication by the
evaluation committee. The evaluation committee recommended the following
bidders for the category: Verveen Attorneys, Noko Maimela Incorporated , MB
Mabunda Incorporated , Maloka Sebola Incorporated , Maboku Mangena
Incorporated, Chidi Attorneys, Gilbert Motedi Attorneys and Modjadji Raphesu
Attorneys. All eight recommended bidders were appointed.
[11] The applicant was neither recommended nor appointed. This is the source of
the dispute, in that the applicant contends that its bid was not considered by
the evaluation committees.
6
[12] A multiphase evaluation procedure was adopted in the bid document. At first,
bidders were to be evaluated on compliance with the mandatory
requirements. Bids that did not satisfy the mandatory requirements were to be
rejected. Then, bids which met the mandatory requirements were to be
evaluated on functionality to assess their capacity to perform in their chosen
categories.
[13] At paragraph 4.1 the bid document reads:
"Thereafter the ability of bidders will be assessed in terms of functionality in
terms of each category of service tendered for. This exercise will assess
capacity of the bidder firm and experience of the lead attorneys and key support
staff as per Annexure A hereof. Bidders must score at least 70% in this
assessment in order to be evaluated further."
[14] A list of firms that had submitted their bids was compiled on the closing date
on 23 September 2022. Each of the firms were listed in terms of the categories
for which they had tendered. For the applicant the list of bidders shows that it
had not specified the category in respect of which it had submitted its tender.
That information would have appeared from a clearly marked tender, as it was
required in clause 2.3 of the bid document.
[15] The applicant and those firms that had not specified the categories in which
they had submitted bids did not go far in the tender.
Non-joinder point
[16] I will not spend much time on this issue. The Municipality contends that all
successful bidders ought to have been cited in this application. This is a bad
point, both in fact and in law. Those eight parties who had succeeded in the
category for which the applicant had applied have been cited. Who the other
7
parties are that ought to be joined and their interest has not been canvassed
a great deal. Joinder ought not to be granted when it is not as a matter of
necessity.2 Thus, a joinder of a party having interest in the outcome of a case
should only be enforced when such party that has not been joined stands to
be affected by the outcome of the case.3 What the other parties' interests are
is unfathomable, regard being had to the fact that the applicant is not asking
for the entire tender to be cancelled.
Ought applicant have appealed the decision?
[17] The Municipality raised this issue contending that the applicant was non-suited
by its failure to invoke the internal remedies in terms of section 62 of the
Systems Act. This statutory provision creates an appeal procedure to be
followed by a party that is affected by a decision of the Municipality. In this
case the applicant is aggrieved by the decision of the bid evaluation committee
to not shortlist it. As I have indicated, the applicant contends that its bid was
not considered right from the start, a decision which fell within the purview of
the evaluation committee.
[18] It is not only is it a requirement in terms of the Systems Act that an aggrieved
person should exhaust internal remedies before heading to the courts, but
section 7(2) of PAJA, upon which this review application is predicated, also
2
3 South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others
(CCT172/16) (2017] ZACC 4; 2017 (8) BCLR 1053 (CC); 2017 (5) SA 1 (CC) (23 February 2017) paras
9 and 10.
Judicial Services Commission and Another v Cape Bar Council and Another 2012 (11) BCLR 1239
(SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) (14 September 2012) at para (12].
8
contains similar requirements . In Koyabe Others v Minister of Home Affairs
and Others4 the issue was posited thus:
"Under the common law, the existence of an internal remedy was not in itself
sufficient to defer access to judicial review until it had been exhausted . However,
PAJA significantly transformed the relationship between internal administrative
remedies and the judicial review of administrative decisions. Section 7(2) of
PAJA provides:
"(a) Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal remedy
provided for in any other law has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied
that any internal remedy referred to in paragraph (a) has been
exhausted, direct that the person concerned must first exhaust such
remedy before instituting proceedings in a court or tribunal for judicial
review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application
by the person concerned, exempt such person from the obligation to
exhaust any internal remedy if the court or tribunal deems it in the
interest of justice."
Thus, unless exceptional circumstances are found to exist by a court on
application by the affected person, PAJA, which has a broad scope and applies
to a wide range of administrative actions, requires that available internal
remedies be exhausted prior to judicial review of an administrative action."
[19] The respondent relied on Evaluations Enhanced Property Appraisals (Pty) Ltd
v Buffalo City Metropolitan Municipality and Another5 in which it was also held
that a party seeking to review a decision of the Municipality must first exhaust
4
5 Koyabe and Others v Minister for Home Affairs and Others (CCT 53/08) (2009] ZACC 23; 2009 (12)
BCLR 1192 (CC); 2010 (4) SA 327 (CC) (25 August 2009) at para (34].
Evaluations Enhanced Property Appraisals (Pty) Ltd v Buffalo City Metropolitan Municipality and Another
(EL 1544/12, ECD 3561/12) [2014] ZAECGHC 55; (2014] 3 All SA 560 (ECG) (19 June 2014).
9
the internal remedies which are regulated by applicable legislation. In that
case it was held with reference to PAJA as follows:
'160] On the above construction, there is no conflict between sections 7(2(a) and (b).
An affected person may only institute review proceedings once one of two
requirements are met: one, all internal remedies have been exhausted ; or two,
exemption to exhaust has been obtained. On this construction , the institution of
review proceedings under sections 7(2)(a) before internal remedies are
exhausted is also prohibited."
[20] The above decision are not without company. They are in sync with the
judgment of the majority in Dengetenge Holdings (Pty) Ltd v Southern Sphere
Mining and Development Company (Pty) Ltd and Others6 which pronounced
on the implications of section 7(2)(c) of PAJA with regard to review
applications brought on its terms. In this case the court emphasised the need
and the importance to not render domestic processes adopted in legislation
nugatory by adjudication a PAJA review prematurely.
[21] As it was held in Koyabe, supra, the exemption is granted by a court, on
application by the aggrieved party. For an application for an exemption to
succeed, the applicant must establish 'exceptional circumstances .' Once such
circumstances are established , it is within the discretion of the court to grant
an exemption. Absent an exemption , the applicant is obliged to exhaust
internal remedies before instituting an application for review.
[22] It seem to me axiomatic , on the above authorities , that a review application
that is instituted prior to a party exhausting the legislated internal remedies is
considered to be premature . On that score, therefore, the court hearing such
application is precluded from reviewing and setting aside the challenged
6 2014 (3) BCLR 265 (CC) at para (116].
10
administrative action until the domestic stipulated in the applicable legislation
remedies have been exhausted or unless the party seeking the review proves
the existence of exceptional circumstances , in which case an exemption is
granted.
[23] Differently put, the duty to exhaust internal remedies holds in abeyance the
exercise of the court's powers to consider an application to review the
impugned decision for such extent of time as the duty is not discharged . This
must be the end of the matter, with no success for the applicant.
Consideration of costs
[24] The application concerned the awarding of a tender, in which the applicant
was denied participation on a legal panel of service providers . Failure of the
application was on a technical point. Substantively , the Municipality would
have had difficulty convincing me of the rationality or lawfulness of the
applicant's exclusion . The application was not frivolous by any means, but for
the applicant's misstep.
[25] In Biowatch Trust v Registrar Genetic Resources and Others,7 this apex court
cautioned against private parties litigating against the state being mulcted with
costs. The point of departure, according to the principle enunciated in that
authority is to order a state party that has failed its constitutional or statutory
obligation to pay costs. Then, where a private party is not successful, the court
7 Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC) (3 June 2009) at para (91].
11
held, such party should not be penalised with costs the party was pursuing a
genuine constitutional issue.
[26] The dispute revolved on the question of procurement by the Municipality of
services, which engaged as a starting point the provisions of section 217 of
the Constitution . Then, the provisions of the Systems and PAJA were equally
invoked. Thus, in my view, the principles enunciated in the authority of
Biowatch apply in favour of the applicant. I do not, as a result, award costs to
the Municipality.
Order
[27] I make the following order:
[a] The application is dismissed.
[b] There is no order as to costs.
APPEARANCES
FOR APPLICANTS --~AKOTI
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
ADVV MABUZA
T J MACHETE ATTORNEYS INC
C/O KOVANI MACHETE ATT. INC
FOR FIRST RESPONDENTS
HEARD ON
DELIVERED ON 12
POLOKWANE
ADVTM MALATJI
MALOKA SEBOLA ATTORNEYS INC.
TZANEEN
12 SEPTEMBER 2024
16 APRIL 2025