About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2025
>>
[2025] ZALMPPHC 85
|
|
ML Nkosi Electrical Contractors CC and Another v Ba-Phalaborwa Local Municipality (Appeal) (HCAA40/2023) [2025] ZALMPPHC 85 (25 April 2025)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
HCA
CASE NO: HCAA 40/2023
A
QUO CASE NUMBER: 4482/2020
(1) REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE:
25 APRIL 2025
SIGNATURE:
In
the matter between:
ML
NKOSI ELECTRICAL CONTRACTORS CC
FIRST APPELLANT
SOMA
CONSTRUCTION
SECOND APPELLANT
-and-
BA-PHALABORWA
LOCAL MUNICIPALITY
RESPONDENT
Delivered
25 April 2025
This
judgment was handed down electronically by circulation to the
parties' legal representatives by e-mail. The date and time for
hand
down of the judgment is deemed to be
April 2025
at
10:00
am.
Date
heard :
31 January 2025
Coram
:
Bresler
AJ
et al
Naude-Odendaal J, Du Plessis AJ
JUDGMENT
BRESLER
AJ:
Introduction:
[1]
The First and Second Appellant (the 'Appeallants') appeals against
the judgment and
order granted by the Honourable Madam Justice
Semenya DJP (the 'Court
a quo’
) on the 28
th
of August 2023, in terms whereof
inter alia
the award of
Tender 06/2012 by the Respondent to the Appellants was declared to be
unlawful and invalid and consequently reviewed
and set aside.
[2]
It is apposite to note that the Appellants apply for a setting aside
of the order
by the Court
a quo
upholding the legality review.
In the alternative, and insofar as the award of the tender is
declared to be reviewed and set aside,
the Appellant applies for an
order whereby the Appellants are entitled to payment of services
rendered and profit and material
provided as may be proven in the
action instituted under Case number: 7196/2018 currently pending in
the above Court.
[3]
The appeal lies against the whole of the judgment and order.
The
Facts:
[4]
The facts, as it appears from the record of the proceedings in the
Court
a quo
and relevant for purposes hereof, are the
following:
4.1
During or about 2012, the Appellants participated in a tender process
in terms of which
they were to install energy saving high masts
within the jurisdictional area of Ba-Phalaborwa Municipality (the
'Respondent').
4.2
The Appellants' bid was for 95 high masts in a total price of
R19,541,461.41 and for a period
of 6 (six) months.
4.3
The Appellants were eventually appointed at a price of R18,541,461.00
and for a period of
4 (months). The appointment letter also amended
the completion period to be "multi-year" without specifying
the meaning
of the term.
4.4
The appointment was accepted but the Appellants raised the
discrepancy with the Respondent.
The contract between the
Appellants and the Respondent was then concluded for an amount of
R19,541,461.41. It lasted for a period
in excess of 4 (four) years.
In
the Court
a quo
:
[5]
The argument of the Appellants in the court
a quo
is largely
premised on the submission that the contract was finalised. This
renders a setting aside of the agreement moot. The
Appellants also
argue that there was an unreasonable delay in instituting the review
proceedings, prohibiting the setting aside
of the impugned decisions
and / or agreement at this late stage.
[6]
As to the alleged procedural irregularities, the Appellants deny
same, alternatively
allege that the irregularities are not of such a
nature that it warrants the setting aside of the agreement. The
crux
of the objection lies against the potential financial losses that
will be suffered should the agreement be set aside - it is after
all
common cause between the parties that both parties have performed in
terms of the alleged unlawful agreement.
[7]
The Respondent, on the other hand, persisted in its view that the
procedural irregularities
render the actions of the Respondent
unlawful, which has the inevitable result that the contractual
relationship between the parties
is rendered illegal and unlawful. As
such, reviewability is evident. The Respondent furthermore
pertinently prays for an order
in terms whereof all profit derived
from the agreement is forfeited in favour of the Respondent, and all
further payments are prohibited.
[8]
It follows that, had the Respondent been successful in the review
application, it
would have potentially rendered the pending
litigation between the parties moot as no contractual relationship
would be deemed
to have existed entitling the Appellants to payment.
[9]
The Court
a quo
correctly summarised the salient facts, the
version of the Appellants and that of the Respondent. It is apposite
to note that the
Court a quo also enunciated that the review
proceedings were only instituted after the Appellants served the
Respondent with a
summons claiming payment of the outstanding amounts
allegedly owed in terms of the contract.
[10]
With reference to the applicable authorities, the Court
a
quo
found that in accordance with
Section
172(1)(a) of the Constitution, 1996
,
a Court must declare any law or conduct that is inconsistent with it,
invalid to the extent of such inconsistency. The contract
concluded
between the parties was done so in violation of the said section. It
is therefore invalid and unlawful and stands to
be set aside.
[1]
[11]
As to the delay in instituting the self-review proceedings, the Court
a quo
reasoned that the delay should not override the importance of the
rule of law. On that basis the delay by the Respondent in instituting
the self-review proceedings was overlooked.
[2]
[12]
The Court
a
quo
also found that there was no evidence of fraudulent activities on
behalf of any of the parties in this case. The Appellants however
accepted the tender, despite the dubiousness about its validity.
Amounts were changed in favour of the Appellants and they 'kept
quiet' about it.
[3]
On this
basis, the Court reasoned that the Appellants are partially to blame
for the current conundrum.
[13]
As to the applicability of the
Gijima
[4]
principle, the Court
a
quo
found
that the facts
in
casu
can be distinguished as there is no evidence that the Applicant gave
an assurance that the contract was compliant with the relevant
statutory provisions of the Constitution. On this basis, a formula
was defined by the Court that must be applied in determining
the
reasonable payment for the services rendered by the Applicant to the
Respondent.
[14]
It must be noted that the determination of the formula to remunerate
the Appellants is, by its
very nature, contradictory to the order
that sets aside the agreement. Once the agreement is set aside due to
invalidity, no contractual
consequences can follow.
The
Applicable Legal Principles:
[15]
In this Court's view, the irregularity in the process in manifest. By
evaluating and awarding
the tender at a lower price, the Appellants
received the benefit of a higher score, which potentially prejudiced
the remaining
tenderers. Since the tender price was then increased
thereafter to the amount initially tendered by the Appellants, the
Appellants
did not suffer any financial loss but only enjoyed the
undue preference as a result of being evaluated on a lower price.
[16]
Approximately nineteen months after site handover, the Municipal
Manager again varied the contract
by means of a letter dated the 5
th
of February 2015. The initial 95 masts were reduced to 70 and at the
evaluated amount of R18,541,461,41. This raised the costs
per mast
with approximately R60,000.00, which again raises the question of
fairness and transparency towards the unsuccessful bidders.
[17]
The Respondents correctly argued that the variations in 2013 and 2015
were irregular in that
they contravened sections 33 and 116(3) of the
Municipal Finance Management Act, Act
56 of 2003 (the 'MFMA').
Section 33 lays down strict procedural requirements for entering into
contractual obligations that exceed
the three (3) year period
contemplated in the municipal annual budget. This includes
inter
alia
Council approval and public participation. It is common
cause that this was not complied with.
[18]
This Court tends to agree. It matters not that the tender process
went through an internal appeal
process. The question that must be
answered is if a potential (theoretical) bidder might or might not
have been prejudiced by the
procedure. This theoretical bidder might
have been enticed to bid if the price and terms were amended publicly
and with due process.
[19]
Regulation 24 of the
Supply
Chain Management Regulations
[5]
provides explicitly that a supply chain policy may allow the
accounting officer to negotiate final terms of a contract identified
through a competitive bidding process as preferred bidders, provided
that such negotiation does not allow any preferred bidder
a second or
unfair opportunity, is not detrimental to any other bidder and does
not lead to a higher price that the bid as submitted.
[20]
Regulation 28 and 29 deals with the BEG (Bid Evaluation Committee)
and BAG (Bid Adjudication
Committee). No power is given to these
committees to unilaterally change the terms of the bid by amending
the bid prices or the
period. The bid must be evaluated and
adjudicated on the price, and for the period, tendered.
[21]
Section
217 of the Constitution
[6]
calls on all organs of state when procuring goods and services, to do
it in terms of systems which are fair, equitable transparent,
competitive and cost-effective
[22]
In
Moseme
Road Construction CC and Others v King Civil Engineering Contractors
(Pty) Ltd and Another
[7]
the following was stated:
'[1] This appeal
concerns the award of a government tender. These awards offen give
rise to public concern - and they are a fruitful
source of
litigation. Courts (including this court) are swamped with
unsuccessful tenderers that seek to have the award of contracts
set
aside and for the contracts to be awarded to them. The grounds on
which these applications are based are many. Sometimes the
award has
been tainted with fraud or corruption, but more often it is the
result of negligence or incompetence or the failure to
comply with
one of the myriad rules and regulations that apply to tenders.
Sometimes the unsuccessful tenderer is to be blamed
for the problem
but then there are cases where he is innocent. Many cases are
bedevilled by delay, whether in launching the application
(and also
because the facts were not readily available or easily ascertainable)
or because of delays and suspensions inherent in
the appeal
procedure. If the applicant succeeds the contract may have to be
stopped in its tracks with possibly devastating consequences
for
government or the successful tenderer or both. Conversely, if the
works are allowed to be completed, the tenderer that should
have been
awarded the tender would unjustly be deprived of the benefits of the
contract. There are also cases where the final judgment
is issued
only after completion of the contract. It is not necessary to
adumbrate further. Tendering has become a risky business
and courts
are often placed in an invidious position in exercising their
administrative law discretion - a discretion that may
be academic in
a particular case, leaving a wronged tenderer without any effective
remedy.'
[23]
In
Chairperson:
Standing Tender Committee and Others v JFE Sapela Electronics (Pty)
Ltd and Others
[8]
Scott JA said (para 14):
'The definition of
'acceptable tender' in the Preferential Act must be construed against
the background of the system envisaged
by section 217(1) of the
Constitution, namely one which is 'fair, equitable, transparent,
competitive and cost-effective'. In other
words, whether 'the tender
in all respects complies with the specifications and conditions set
out in the contract documents must
be judged against these values'.
[24]
In
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency, and
Others
[9]
the following was stated:
'[27] There is a
further consideration. As Corruption Watch explained, with reference
to international authority and experience,
deviations from fair
process may themselves all too often be symptoms of corruption or
malfeasance in the process. In other words,
an unfair process may
betoken a deliberately skewed process. Hence insistence on compliance
with process formalities has a threefold
purpose: (a) it ensures
fairness to participants in the bid process; (b) it enhances the
likelihood of efficiency and optimality
in the outcome; and (c) it
serves as a guardian against a process skewed by corrupt influences.
[25]
In
Steenkamp
NO v Provincial Tender Board, Eastern Cape
[10]
Moseneke DCJ stated:
'Section 217 of the
Constitution is the source of the powers and function of a government
tender board. It Jays down that an organ
of State in any of the three
spheres of government, if authorised by Jaw may contract for goods
and services on behalf of government.
However, the tendering system
it devises must be fair, equitable, transparent, competitive and
cost-effective. This requirement
must be understood together with the
constitutional precepts on administrative justice in s 33 and the
basic values governing public
administration in section 195(1).'
[26]
Having regard to the authorities, this Court is of the view that a
basis for self-review has
been established premised on the legality
of the Respondent's actions. In this regard, the findings of the
Court
a quo
cannot be faulted.
[27]
Having found that a ground for the self-review exists, the Court is
also called upon to determine
if the Respondent unreasonably delayed
in instituting the current proceedings before court. The proverbial
horse has, after all,
bolted insofar as the Appellants duly performed
in terms of the contract and has finalised the works as per the
tender.
[28]
In
Govan
Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd
[11]
the Supreme Court of Appeal extensively dealt with the delay in
instituting a self-review. It was stated:
'[34] I now tum to
deal with the true nature of the review we are here concerned with
and will then consider the question of delay
in relation thereto. It
is now firmly established that self-reviews by organs of state are
not reviews in terms of the Promotion
of Administrative Justice Act 3
of 2000 (PAJA), but rather legality reviews. Unlike the control
period 180 days provided for in
PAJA and a court's discretion in
extending the period, where the interest of justice so requires, a
court dealing with a legality
review has no such fixed period within
which an application must be brought. In Buffalo City Metropolitan
Municipality v Asia Construction
(Pty) Ltd, the Constitutional Court,
with reference to prior decisions, and comparing the discretion under
PAJA to the discretion
to be exercised in a legality review, said the
following in relation to when the time period starts to run:
'(l)n both assessments
the proverbial clock starts running from the date that the applicant
became aware or reasonably ought to
have become aware of the action
taken' [Emphasis added.]'
[35]
The Constitutional Court went on to state the following:
'The approach to undue
delay within the context of a legality challenge necessarily involves
the exercise of a broader discretion
than that traditionally applied
to s 7 of PAJA. The 180-day bar in PAJA does not play a pronounced
role in the context of legality.
Rather, the question is first one of
reasonableness, and then (if the delay is found to be
unreasonable) whether the interests of justice require an
overlooking of that unreasonable delay.'
In para 51 the
Constitutional Court explained that an assessment of the
reasonableness of the delay must involve, amongst others,
the
explanation for the delay. The entire period of the delay must be
explained. Where the delay can be explained and is justified,
then it
is reasonable, and the merits of the review can be considered. Where
there is no explanation for the delay, the delay will
necessarily be
unreasonable.
[36]
In Asia the Constitutional Court taught that, even if the
unreasonableness of the delay has been
established, it cannot be
evaluated in a vacuum. The next leg of the test is to see if it ought
to be overlooked. It went on to
state the following:
'Courts have the power
in a legality review to refuse an application where there is an undue
delay in initiating proceedings or
discretion to overlook the delay.
There must however be a basis for a court to exercise its discretion
to overlook the delay. That
basis must be gleaned from the facts made
available or objectively available factors. '
[Citations omitted.]
[37]
The Constitutional Court in Asia, with reference to its prior
decisions, described the appropriate
approach as follows:
'The approach to
overlooking a delay in a legality review is flexible. In Tasima I,
Khampepe J made reference to the ''factual,
multi-factor,
context-sensitive framework" expounded in Khumalo. This entails
a legal evaluation taking into account a number
of factors. The first
of these factors is potential prejudice to affected parties as well
as the possible consequences of setting
aside the impugned decision.
The potential prejudice to affected parties and the consequences of
declaring conduct unlawful may
in certain circumstances be
ameliorated by this court's power to grant a just and equitable
remedy and this ought to be taken into account. '
[Citations omitted.]
[38]
Theron J in Asia set out another factor to be taken into account in
considering whether to overlook
delay, namely the nature of the
impugned decision. She went on to state the following:
'This, in essence,
requires a consideration of the merits of the legal challenge against
that decision.'
In the next paragraph
she expounded on it as follows:
'This court has made
plain that even within the context of PAJA, the extent and nature of
the deviation from constitutional prescripts
directly impacts upon an
application for condonation in terms of s 7 of PAJA. In the context
of legality review, in Khumalo, Skweyiya
J ... explained that "an
additional consideration in overlooking an unreasonable delay lies in
the nature of the impugned
decision" [. . .] and considering the
legal challenges made against that decision". '
Theron J went on to
cite, with approval, the following dictum in the decision of this
court in South African National Roads Agency
Ltd v Cape Town City:
'It is true that in
[the Supreme Court of Appeal's judgment in Opposition to Urban
Tolling Alliance this court considered it important
to settle the
court's jurisdiction to entertain the merits of the matter by first
having regard to the question of delay. However,
it cannot be read to
signal a clinical excision of the merits of the impugned decision,
which must be a critical factor when a
court embarks on a
consideration of all the circumstances of a case in order to
determine whether the interests of justice dictate
that the delay
should be condoned. It would have to include a consideration of
whether the non compliance with statutory prescripts
was
egregious.'
[Emphasis added.]
[39]
In Asia the Constitutional Court spoke thus:
'(T)he extent and
nature of the illegality may be a crucial factor in determining the
relief to be granted when faced with a delayed
review. Therefore,
this court may consider, as part of assessing the delay, the
lawfulness of the contract under the principle
of legality.'
[29]
The Supreme Court of Appeal furthermore remarked:
[41] Finally, with
reference to its decision in State Information Technology Agency SOC
Limited v Gijima Holdings (Pty) Limited,
where it was held that even
where there was no basis to overlook an unreasonable delay the court
is nevertheless compelled to declare
the state's conduct unlawful,
because s 172(1)(a) of the Constitution enjoins a court to declare
invalid any Jaw or conduct that
it finds to be inconsistent with the
Constitution, the Constitutional Court in Asia recognised the tension
between the delay rules
and the injunction to declare conduct
unlawful that conflicts with the Constitution. The Constitutional
Court in Asia reflected
on a Jong line of cases that held that the
state must apply timeously to courts and the implication in Gijima
that time hurdles
must yield to that injunction. On this aspect the
Constitutional Court in Asia said the following:
'The Gijima principle
should thus be interpreted narrowly and restrictively so that the
valuable rationale behind the rules on delay
are not undermined. At
the same time, this is not a matter in which the Gijima principle can
be ignored and thus impliedly overruled.
So the injunction it creates
- to declare invalid that which is indisputably and clearly
inconsistent with the Constitution - must
be followed where
applicable. '
[30]
Having regard to the judgment of the Court
a
quo
,
this Court cannot fault the reasoning of the Honourable Madam Justice
Semenya DJP in finding that the institution of the proceedings
within
a reasonable time must not surpass the importance of the rule of
law.
[12]
As stated by the
minority in the
Asla
decision referred to herein above:
'It is an opportunity
for the state to demonstrate that its self-review seeks to promote
open, responsive and accountable government
rather than the self
interest of state officials seeking to evade the consequences of
their prior decision.'
[31]
Having stated the aforesaid, in this Court's view, the delay in
instituting the proceedings should
not hamstrung the Court's ability
to scrutinise unlawful administrative actions. This must be seen
against the backdrop of the
powers that a Court holds in terms of
Section 172(1)(b) of the Constitution.
[32]
The Appeal therefore cannot succeed on these grounds. But it does not
follow that the appeal
should be dismissed as a whole.
[33]
In
Electoral
Commission v Mhlope and Others
[13]
the Constitutional Court stated:
'[132] Section
172(1)(b) clothes our courts with remedial powers so extensive that
they ought to be able to craft an appropriate
or just remedy, even
for exceptional, complex or apparently irresoluble situations. And
the operative words in this section are
'any order that is just and
equitable'. This means that whatever considerations of justice and
equity point to as the appropriate
solution to a particular problem,
it may justifiably be used to remedy that problem. If justice and
equity would best be served
or advanced by that remedy, then it ought
to prevail as a constitutionally sanctioned order contemplated ins
172(1)(b).'
[34]
In
Buffalo City Metropolitan Municipality v Asia Construction
(Pty) Ltd
supra
the Constitutional Court aptly
summarised the situation as follows:
[104] When
the Municpality took the view that the Reeston contract was invalid,
the implementation of the contract had
commenced and was continuing.
The Municipality was content for the respondent to complete the
contract (building low cost houses)
to the benefit of the
Municipality and residents of Reeston. It was common cause that the
work has been practically completed.
[105] In
these circumstances, justice and equity dictate that the Municipality
should not benefit from its own undue
delay and in allowing the
respondent to proceed to perform in terms of the contract. I
therefore make an order declaring the Reeston
contract invalid, but
not setting it aside so as to preserve the rights to that the
respondent might have been entitled. It should
be noted that such an
award preserves rights which have already accrued but does not permit
a party to obtain further rights under
the invalid agreement. '
[35]
Likewise, in
State Information Technology Agency SOC v Gijima
Holdings (Pty) Ltd
supra
the Constitutional Court
remarked:
'[54] Overall, it
seems to us that justice and equity dictate that, despite the
invalidity of the award of the DoD agreement, Sita
must not benefit
from having given Gijima false assurances and from its own undue
delay in instituting proceedings. Gijima may
well have performed in
terms of the contract, while Sita sat idly by and only raised the
question of the invalidity of the contract
when Gijima instituted
arbitration proceedings. In the circumstances, a just and equitable
remedy is that the award of the contract
and the subsequent decisions
to extend it be declared invalid, with a rider that the declaration
of invalidity must not have the
effect of divesting Gijima of rights
to which - but for the declaration of invalidity- it might have been
entitled.'
[36]
The aforesaid remarks by the highest court resonate with the facts
in
casu
. Justice and fairness is, after all, part of the core values
that our
Constitution
seeks to uphold.
[37]
In this Court's view, the Appellants should also not be deprived of
any rights that they might
be entitled to, but for the declaration of
invalidity. In this regard the Court
a quo
erred in her
finding that the Appellants should be deprived of the profit that
they derived from the unlawful agreement. The Appellants
correctly
argued that there were no irregularities or allegations of fraud
levied against them. Nor can it be said that the Appellants
failed to
perform in terms of the contract.
[38]
It follows that the Appellants should be partially successful in
their appeal on this aspect
only. Although a declaration of
invalidity must follow, this Court has a discretion to set aside the
agreement, and the fiscal
consequences thereof.
[39]
The calculation of what is due to the Appellants already forms the
subject of pending litigation
between the parties. It is not
necessary for this Court to consider a formula for calculating such
amount (if any), as it will
be determined in due course at the trial
of the matter.
Costs:
[40]
As to the issue of costs, this Court is mindful of the fact that both
the Appellants as well
as the Respondent has achieved a measure of
success in these proceedings. This Court is guided by the remarks of
the Constitutional
Court in
Gijima
supra
to wit:
'[55] Sita achieves
nominal success to the extent that there is a declaration of
constitutional invalidity. Must this affect the
question of costs?
No. Substantially it is Gijima that succeeds. We say so because
Sita's efforts were directed at avoiding the
contract and Gijima, on
the other hand, sought to hold on to the contract. To the extent that
it is not to be divested of its entitlement
under the contract,
Gijima has managed to ward off Sita's efforts; that is the success we
are referring to. '
[41]
In this Court's view and having regard to both the proceedings in the
Court
a quo
and the fact that there is pending litigation
between the parties, it is evident that the sole object of the
Respondent is to avoid
performance in terms of the agreement purely
on the premise that it constitutes an unlawful agreement. The
Appellants, on the other
hand, argued extensively in favour of
enforcing the contractual obligations as they have already performed.
The Appellants are
therefore substantially successful as this Court,
in effect, upholds the contractual consequences although the tender
is set aside.
Order:
[42]
In the result the following order is made:
42.1
The Appeal is upheld in part.
42.2
The order of the Court
a quo
is set aside and replaced with
the following:
'1.
The award of Tender 06/2012 by the Applicant to the Respondents on or
around 19 November
2012, is declared to be unlawful and invalid.
2.
The order of invalidity above does not have the effect of divesting
the respondent
of any rights it would have been entitled to under the
contract, but for the declaration of invalidity.
3.
Each party shall pay its own costs.'
42.3
The Respondent is ordered to pay the costs of the Appellants,
including costs of two counsel on Scale C,
pertaining to the
Application for Leave to Appeal and the proceedings in this Court.
M
BRESLER AJ
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
I
concur,
NAUDE-ODENDAAL
J
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
I
concur,
DU
PLESSIS AJ
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
FOR
THE APPELLANT :
Adv. F Botes SC
Adv. E Janse van
Rensburg
INSTRUCTED
BY
:
Baartman du Plessis Attorneys
Pretoria
nicoleneds@bdpattorneys.co.za
FOR
THE RESPONDENT :
Adv. J Motepe SC
Adv. N Lekgetho
INSTRUCTED
BY
:
Madiba
Motsai Masitenyane & Githiri Attorneys
Rivonia
majaha@mmmgattorneys.co.za
pholoso@mmmgattorneys.co.za
tebogo@mmmgattorneys.co.za
DATE
OF JUDGMENT :
25 April 2025
[1]
See paragraph [22] of the Judgment on paginated page 316
[2]
See paragraph [13] of the Judgment on paginated page 311
[3]
See paragraph [24] of the Judgment on paginated page 317
[4]
As enunciated in
State
Information Technology Agency SOC Ltd v Gijima Holdings (pty) Ltd
2018 (2) SA 23 (CC)
[5]
GG Notice 868 of 2005 published in Government Gazette 27636 of 30
May 2005
[6]
Act 108 of 1996
[7]
2010 (4) SA 359 (SCA)
[8]
2008 (2) SA 638 (SCA)
[9]
2014 (1) SA604 (CC)
[10]
2007 (3) SA 121
(CC) par 33
[11]
2021 (4) SA 436
(SCA)
[12]
Paragraph [13] of the Judgment of the Court a quo
[13]
2016 (5) SA 1
(CC) at par 132