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This judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives by email.
The judgment is further uploaded to the electronic file of this matter on
CaseLines by the Judge or her Secretary. The date of this judgment is
deemed to be 18 February 2025.
JUDGMENT
____________________________________________________________________
COLLIS J:
INTRODUCTION
1. This is an application for leave to appeal against the judgment and order
of this Court delivered on 6 June 2024.1
2. In its judgment, t he Court found in favour of the plaintiff, Bosch Munitech
(Pty) Ltd (“Bosch”) and dismissed the counterclaim of the defendant, Govan
Mbeki Municipality (the “Municipality”).2
1 Caselines 28 -1: Notice of Application for Leave to Appeal.
2 Caselines 0069: Order per Judgment.
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3. Bosch Munitech (Pty) Ltd, instituted proceedings against the Municipality,
Govan Mbeki Municipality, seeking payment for services allegedly rendered
under a contract for the refurbishment of the eMbalenhle Water Works.
Bosch claimed an amount of R16,996,144.69, together with interest. As
mentioned, Bosch also instituted a claim for loss of profits in the sum of R8
785 710,8, however it abandoned this claim during the proceedings.
4. The Municipality's defence before this Court, was that no valid contract
existed between the parties, as the tender validity period had expired, and
the necessary formalities for contract formation were not complied with.
Additionally, the Municipality raised a counter -claim for amounts paid to
Bosch, which it contended were made in error and without legal cause.
5. The Municipality in its Application for Leave to Appeal raised several
grounds of appeal. On its behalf it was contended that there are reasonable
prospects of success on appeal, as contemplated in section 17(1)(a)(i ) of the
Superior Courts Act 10 of 2013.
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6. In addition , the Municipality also contends that the matter raises
compelling legal and public interest issues warranting appellate
consideration under section 17(1)(a)(ii). The implications of the High Court’s
findings for the principle of legality, accountability and fair administrative
action in muni cipal governance extend beyond this case and thus demand
careful review.
7. The Applicant further contends that this appeal also raises issues of
national importance, particularly the necessity for adherence to tender
validity periods, the role of competitive bidding in ensuring fairness,
transparency, and accountability, and the limitations of doctrines like
estoppel and ostensible authority when applied to organs of state. It is
therefore contended that the issues at the heart of this case transce nd the
immediate interests of the parties and have broader implications for the
public procurement framework in South Africa.
8. The Respondent opposes the Application for leave to appeal. On behalf of
the Respondent , it was submitted that the grounds of appeal advanced in
the Applicant’s Notice of Intention to Apply for Leave to Appeal are, in the
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main, aimed at establishing that the legality challenge launched by the
Defendant has substance.
9. The grounds of appeal however do not deal with is the crux of the Court’s
decision viz that whatever the merits of the legality challenge might be, the
challenge cannot be entertained due to undue delay and a failure to adduce
any evidence with a view to explain same.
10. Section 17 (1) of the Superio r Court Act provide that “Leave to appeal
may only be given where the judge or judges concerned are of the opinion
that –
(a) (i) the appeal would have a reasonable prospect of success;”
The use of the word “would” ha ve been found to have raised the bar of the
test that now has to be applied to the merits of the proposed appeal before
leave should be granted .3
3 Erasmus, ibid, footnote 3 in which the unreported decisions in the Land Court and
in The Acting National Director of Public Prosecution v Democratic Alliance GP Case
No. 19577/2009 dated 24 June 2016 at par 25 are refe rred to. Vide also
Notshokovu v S, unreported, SCA Case No. 157/2015 dated 7 September 2016,
where it was held (at par 2) that an Appellant faces a higher and stringent threshold
in terms of section 17(1) of the Superior Courts Act than was the case in te rms of
the repealed Supreme Court Act, Act 59 of 1959.
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11. Leave to appeal should therefore only be granted when there is “a sound,
rational basis for the conclusion that there are prospects of succ ess on
appeal”.4
12. The Applicant having failed to adduce any evidence to explain such prima
facie undue delay before this Court , I cannot conclude , that the appeal would
have a reasonable prospect of success .
13. Consequently, the application for leave to appeal is refused with costs ,
including costs of senior counsel on scale C.
4 Four Wheel Drive Accessory Distributors CC v Rattan N.O. 2019 (3) 451 (SCA), p.
463, [34].
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