IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 64334/21
In the matter between:
SOUTH AFRICAN TOURISM BOARD Applicant
and
LETSEMA CONSULTING AND ADVISORY (PTY) LTD First Respondent
TOURISM BUSINESS COUNCIL OF SOUTH AFRICA Second Respondent
DATE OF JUDGMENT : 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’s secretary .
The date of the judgment is deemed to be 22 April 2025.
JUDGMENT
(APPLICATION FOR LEAVE TO APPEAL)
Khashane Manamela , AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
22 April 2025 _____________________
Date K. La M Manamela
2
Introduction
[1] On 06 December 2024, I handed down a judgment in the legality review application
(‘the main application ’) substantially in favour of the South African Tourism Board (‘SA
Tourism ’) against Letsema Consulting and Advisory (Pty) Ltd (‘Letsema’) in the following
terms (‘the Judgment’) :
[1.1] that, the decision s taken by SA Tourism in March and in August 2020 to appoint
Letsema as a service provider are d eclar ed unlawful, constitutionally invalid and are
reviewed and set aside ;
[1.2] that, the appointment s which came into existence pursuant to the decision s,
envisaged in [1.1] above , are d eclar ed unlawful and constitutionally invalid and are set
aside ;
[1.3] that, subject to what is stated in [1.4] below , it is declared that payments made
by SA Tourism to Letsema pursuant to the appointment are unlawful;
[1.4] that, as just and equitable remedy:
[1.4.1] it is declared that the payments made by SA Tourism t o Letsema
pursuant to the appointments in the amount of R10 130 269, 59 should
not include monies representing profits on the payment received from
the appointment ;
[1.4.2] Letsema is d irected to provide SA Tourism with a detailed breakdown
of its reasonable expenses with support ing vouchers relating to the
monies received by Letsema from SA Tourism pursuant to the
appointment and file same with this Court within sixty (60) days from
the date of th e order , being 06 December 2024 ;
3
[1.4.3] SA Tourism shall, within thirty (30) days thereafter, verify the details
provided by Letsema in terms of the order and file the verification with
this Court;
[1.4.4] this Court will thereafter determine the amount to be paid by Letsema to
SA Tourism.
[1.5] each party shall be responsible for its own costs, including costs occasioned by
the joinder of the second respondent and postponement of the application on 21
November 2023.1
[2] On 28 December 2024, Letsema launched this application for leave to appeal (‘Leave
to Appeal’) against the Judgment or part of it, on the grounds set out below.2 Essentially,
Letsema is dissatisfied about the just and equitable remedy granted in terms of the Judgment.3
The Leave to Appeal is opposed by SA Tourism.
[3] The Leave to A ppeal was heard virtually or remotely on 28 February 2025. As in the
main application, Mr K Tsatsawane SC and Ms N Makhaye appeared for SA Tourism , and Mr
G Budlender SC and Mr W van Aswegen appeared for Letsema. I reserved this judgment .
Letsema’s g rounds of appeal
[4] The Leave to Appeal is sought to the Supreme Court of Appeal, alternatively a full
court of this Division , against the orders in the Judgment concerning the just and equitable
remedy and costs .
1 South African Tourism Board v Swift Thinking (Pty) Ltd and Another (64333/21; 64334/21) [2024]
ZAGPPHC 1311 (6 December 2024) par [122] which was a joint judgment of this and another related
matter of SA Tourism v Swift Thinking under case number: 64333/21 . In the latter matter , leave to appeal
was sought in terms of notice dated 02 January 2025, but was subsequently withdr awn on 28 January 2025.
2 Pars [4] -[6] below.
3 Par [1.4] above , for the terms of the just and equitable remedy in the Judgment.
4
[5] The grounds of appeal set out in the notice for the Leave to Appeal include the
follow ing:
Reasonable prospects that a Court on appeal would come to a different
conclusion
1. …
2. Letsema acted reasonably in relying on the assurances and representations by
SA Tourism’s Chief Executive Officer (Mr Ntshona) that the services would
be contracted for and paid for by the Second Respondent, the Tourism
Business Council of South Africa (TBCSA).
3. It was never SA Tourism’s case that if Letsema was under the genuine belief
that its appointment and payment were to originate from the Second
Respondent, the TBCSA, it was nonetheless obliged to question whether a
public procurement process was necessary.
4. Letsema was misled by the deliberate misrepresentation by Mr Ntshona that it
was being appointed and would be paid by the TBCSA.
5. It was not unreasonable for Letsema to be deceived by this misrepresentation.
6. SA Tourism’s own Executive Committee was similarly misled by Mr
Ntshona’s misrepresentation to it that Letsema’s appointment was being made
and would be funded by the TBCSA.
7. Letsema did not engage in any wrongdoing. It was SA Tourism, acting through
Mr Ntshona, that initiated the transaction and breached the principle of legality
in taking the impugned decisions and concluding the transactions that
followed.
8. The deliberate misrepresentation by SA Tourism misled Letsema and induced
the contract.
9. It could not be either just or equitable to permit SA Tourism, an organ of state,
to make misrepresentations through its CEO, act unlawfully, and then, as a
result of an order of court, benefit from that conduct by receiving the services
in question at a reduced price.
10. The Court misdirected itself and erred by failing to find that a just and equitable
remedy required that a declaration of invalidity would not have the effect of
divesting Letsema of rights to which it would otherwise have been entitled, but
for the declaration of invalidity.
11. SA Tourism’s application for review was cynical and self -serving in that
11.1. the review was initiated because Letsema required payment of the
outstanding amount for the admittedly highly effective services which
Letsema had provided; and
11.2. SA Tourism attempted to profit from its own unlawful conduct by not
only refusing to pay the outstanding amount, but by seeking an order
that Letsema repay everything SA Tourism had paid it – in other
5
words, an order that SA Tourism should receive the services of
Letsema for free.
…
14. As to the costs of the application: the Court with respect misdirected itself by
failing to have regard or proper regard to the facts that:
14.1. Letsema achieved substantial success, as SA Tourism failed in its
attempt to obtain an order that in effect would have required Letsema
to render its services for free …
Compelling reasons why the appeal should be heard
15. …
16. This matter raises a significant question about the nature of just and equitable
remedies under section 172(1)(b) of the Constitution in cases of unlawful state
procurement, on which there has not been any authoritative pronouncement by
the courts. The question is whether, and if so to what extent, a “no -profit”
principle should apply in circumstances such as this, where the innocent party
was deliberately misled by misrepresentations made by an organ of state …4
[6] But when appearing at the virtual hearing of the Leave to Appeal, Mr G Budlender SC
did not appear to be forceful about his client dissatisfaction with the costs order made. But, I
will nevertheless consider all grounds in the Leave to Appeal , as appearing above.
Submissions on behalf of Letsema
[7] At the hearing of the Leave to Appeal t he oral submissions by counsel for Letsema were
naturally pivoted upon the grounds of appeal, referred to above. I refer to some of these
submissions under this part.
[8] Letsema is dissatisfied with paragraph s 122(c) (i.e. the declaration of unlawfulness of
the payments it received from SA Tourism )5 and 122(d) (i.e. just and equitable remedy) (‘the
Orders’) ,6 as well as paragraph 122(e) (i.e. Cost Order)7. It is submitted on behalf of Letsema
that the re is a reasonable prospect that an a ppellate court will find that this Court misdirected
itself , especially by adopt ing a wrong principle with regard to the just and equitable remedy
4 Leave to Appeal, CaseLines 0 -2 to 0 -5.
5 Par [1.3] above.
6 Par [1.4] above.
7 Par [1.5] above.
6
granted. Letsema finds the Orders for the remedy to be depriving it of profit s for the work
performed whilst SA Tourism benefit s from its own unlawful conduc t by only pay ing a reduced
price for the services received . The Orders , according to Letsema, are based on an incorrect
principl e which is anything but just and equitable .
[9] Coun sel for Letsema referred to instances where the courts have applied the just and
equitable principle or remedy envisaged in section 172(1)(b) of the Constitution of the Republic
of South Africa, 1996 (‘the Constitution’) , where a procurement decision has been partly or
fully implemented an d, subsequently , it is established that the decision was invalid in terms of
PAJA . Further, counsel cited the following dicta from Allpay Consolidated Investment
Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency
and Others (‘Allpay ’):8
It is true that any invalidation of the existing contract as a result of the invalid tender
should not result in any loss to Cash Paymaster. The converse, however, is also true.
It has no right to benefit from an unlawful contract. And any benefit that i t may derive
should not be beyond public scrutiny.
[footnote omitted]
[10] Counsel , further , relied on a triad of judgments of the Constitutional Court which , it is
submitted , demonstrate clearly that it is not impermissible for a successful tender er to benefit
from the implementation of the contract .9 What , actually , is meant is that a successful tenderer
does not have the right to benefit from the unlawful contract , but it may still benefit . The inquiry
in this regard concerns what is just and equitable and the contractor may still receive full
payment for the work done, despite the invalidity of the contract. At the hearing for the Leave
to Appeal and, perhaps, even the main application, counsel for Letsema referred to the incorrect
8 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African
Social Security Agency and Others 2014 (4) SA 179 (CC) (‘Allpay ’) [67].
9 State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC)
(‘Gijima ’); Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC)
(‘Buffalo City ’); Greater Tzaneen Municipality v Bravospan 252 CC 2025 (1) SA 557 (CC) (‘Bravospan ’).
7
application of the views from Allpay to have resulted in the coinage of the so -called ‘no profit’
principle in this type of matters.
[11] The material part of the Orders, c ounsel’s submissions continued, were not just an d
equitable when consideration is given to the following circumstances in this matter: (a) who
was primarily to blame for the fact that the award was invalid ; (b) the assurances given and
misrepresentations by Mr Ntsh ona, the then CEO of SA Tourism ; (c) the fact that Letsema
properly performed i ts obligations under the contract , and (d) whether it should be just and
equitable f or an o rgan of state , which was responsible for the invalid award , to benefit from its
own unlawful conduct . The Orders effect ively serve as punish ment of Letsema and reward of
SA Tourism as the full price for the services rendered will not be paid , contrary to the triad of
Constitutional Court decisions , referred to above.10 This may also create an incentive for organs
of state to enter into invalid contracts motivat ed by the fact that the y will only be l iable for a
reduce d price, which is contrary to public interest .
[12] Under the circumstances , the submi ssions conclude, leave to appeal ought to be granted,
preferably to the Supreme Court of Appeal , due to the greater need for clarity and certainty , as
well as author itative pronouncement on the material issues of public importance.
Opposition to the Leave to Appeal (and submissions on behalf of SA Tourism )
[13] In its oppos ition of the Leave to Appeal, SA Tourism , predominantly disputes the
appealability of the Orders , including the Cost Order , and points to the absence of reasonable
prospect of success.
[14] It is submitted on behalf of SA Tourism that the just and equitable order in the Judgment
is not final in effect, and it is not in the interests of justice to appeal against it at this stage. This
is so, as this part of the O rders does not prescribe the amount which Letsema ought to repay to
10 Ibid.
8
SA Tourism , but only a procedure to be used by the Court to determine the quantum of the
repayment.11 Once the amount to be repaid is determined, which would constitute a final order,
an appeal would be competent . For, this Court may still decide that nothing should be repaid
by Letsema to SA Tourism.
[15] Counsel for SA Tourism cited authorities in support of their client’s ground of
opposition that an appeal is not competent at this stage. Counsel referred to the decision i n
International Trade Administration Commission v SCAW South Africa (Pty) Ltd12 by the
Constitutional Court that the correct approach to appealability is to have regard to the interests
of justice.13 Appealability does not depend any longer ‘ largely on whether the interim order
appealed against has final effect or is dispositive of a substantial portion of the relief claimed
in the main application ’, as that ‘ is now subsumed under the constitutional interests of justice
standard ’.14 In determining appealability or whether to grant leave to appeal the interests of
justice prevail over any impediments to the contrary which may arise from pre-Constitution
common -law.15 But this does not suggest the jettisoning of the common law principles which
should only yield to the interests of justice where the circumstances of a matter so dictate .16
This means that the durable principles in Zweni v Minister of Law and Order (‘Zweni ’)17
remain applicable as they retain a gravitational pull on appealability of orders amidst ‘the
capacious remit of the interests of justice ’.18 One of the principles or attributes in Zweni is that
the high court seized with a matter ought to bring finality to the matter.19 The mischief guarded
11 Paragraph [122](d) of the Judgment , paraphrased in par [1.4] above .
12 International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC)
(‘SCAW ’).
13 SCAW at [41].
14 Tshwane City v Afriforum and another 2016 (6) SA 279 (CC) [40].
15 Tshwane City v Afriforum 2016 (6) SA 279 (CC) [41].
16 Minmetals Logistics Zhejiang Co Ltd v The Owners and Underwriters of the MV Smart and another [2025]
1 All SA 60 (SCA); 2025 (1) SA 392 (SCA) (‘Minmetals ’) [32].
17 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532 -533.
18 TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others 2023 (5) SA
163 (SCA) (‘TWK ’) [30]; Minmetals [32].
19 Zweni at 532 -533.
9
against is appealing on a piecemeal basis to an appe llate court, which is inherently not cost-
effective and lead to the delay in the resolution of high court litigation .20
[16] It is further argued by Mr K Tsats awane SC for SA Tourism that the Orders are not
final in nature and, thus, not appealable. The declaration of unlawfulness of the payments (i n
paragraph 122 (c)) is ‘subject to ’ the order in paragraph 122( d), thus, the issues in the latter
have to be determined (in favour of SA Tourism, that is) for the declaration to come into effect .
Otherwise, Letsema would not have to make any payment to SA Tourism , the argument
concludes . Also , that Letsema has not established that it is in the interests of justice to grant
leave to appeal against the Orders. This is borne by the fact that : (a) the Orders have not finally
disposed of the important issues in dispute between the parties regarding the declaration of
unlawfulness of the payments made to Letsema by SA Tourism , and the amount to be repaid
by Letsema to SA Tourism , if any ; (b) in the event of an appeal at the instance of Letsema
being successful, following the granting of leave to appeal , the parties ought to return to this
Court for th e remainder of the just and equitable relief , which would delay the finalisation of
the matter, and (c) a n appe llate c ourt cannot concern itself with appeal s against conditional
order s, as in the Order s and, thus, t his Court ought to wrap up the just and equitable remedy,
before any appeal is competent .
[17] The opposition by SA Tourism is also on the basis that the intended appeal by Letsema
has no reasonable prospect of success . On the one hand , the Orders are non-appealable in nature
on the grounds already stated above . On the other hand, there is no misdirect ion on the part of
this Court on the basis alleged by Letsema , as th is Court – in recogni tion of the fact that
Letsema may be entitled to keep the monies received from SA Tourism , deferred the issue for
20 TWK [21]; Minmetals [33]; Zweni at 532 -533.
10
later determination. Evidence subsequently gathered may reveal that no thing is repayable to
SA Tourism by Letsema .
[18] Counsel for SA Tourism disputes that t he triad of cases , relied upon by Letsema ,21
serve as authority for a view that the private party to an impugned procurement ought to receive
full payment in terms of the impugned contract. The cases , it is submitted, did not deal with
divesting a private party to a contract of the monies received in terms of a just and equitable
remedy granted by the Court in terms of section 172(1)(b) of the Constitution .22 In contrast t he
vexed question which faced this Court was whether Letsema should be divested of the monies
paid to it as part of the just and equitable remedy. The Orders are consistent with section
172(1)(b) as they do not deprive Letsema from retention of monies it received, but only create
a procedure in terms of which this Court is to determin e just and equitable amount to be retained
by Letsema or repaid to SA Tourism .
[19] In what resembles a contest of virtue (obviously of a million proportions , if it is ) SA
Tourism denies that Letsema is an innocent party in this matter . Counsel for SA Tourism
argued that Letsema has always known that it s appoint ment was not by Tourism Business
Council of South Africa (‘TBCSA ’), the second respondent in the main application, and, in
fact, Letsema did not have dealings with TBCSA. Letsema also knew that any appointment by
SA Tourism could only be in terms of a public procurement exercise . Granted Mr Ntshona may
have misled Letsema, but the latter knew that TBCSA was not involved . The latter issue is the
very basis of the institut ion of th e judicial review by SA Tourism , the submission concludes .
21 Par [10] above.
22 It is submitted on behalf of SA Tourism that in Gijima the Court declared the contract invalid, but did not
set it aside and preserved the right of Gijima to sue, in an arbitration, wh ich may be due to it under the
invalid contract. The same was ordered in Buffalo City . In the recent case of Bravospan the Court invoked
the interests of justice to prevent the Municipality from paying Bravospan ‘fairly for the services that it
has taken from Bravospan’. Counsel for SA Tourism argues that it is still to be determined what constitutes
‘paying Bravospan fai rly’.
11
[20] SA Tourism also critici ses Letsema’s dissatisfaction with the Cost Order in the
Judgment and for including same as a ground of appeal. The Cost Order made, it is submitted
by counsel for SA Tourism, was correct as Letsema was not successful . Therefore, any intended
appeal against the Cost Order has no factual and legal basis , as an appe llate c ourt would not
interfere with th e discretion of this Court in this regard . Such interference would be only
appropriate in the event of: (a) the discretion not exercised judicially ; (b) the exercise of the
discretion influenced by wrong principles or constituting a misdirection on the facts , or (c) the
decision not having been reasonably made by this Court properly directing itself to all the
relevant facts and principles. Consequently, t here is no basis for any interference in this matter .
Applicable legal principles for application s for leave to appeal
[21] I have referred to most of the legal principles cited on behalf of the parties in support
of their respective cases, this or the other way. But the legal principle s central to an application
for leave to appeal are premised on the provisions of the Superior Courts Act 10 of 2013 .
[22] Section 17 (1) of the Superior Courts Act is perti nent in this r egard and reads as follows
in the material part :
(1) 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; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration …
[23] In Democratic Alliance v President of the Republic of South Africa and Others ,23 a full
court of this Division made the follow ing observation regard ing the test for leave to appeal :
[4] The test as now set out in s 17 constitutes a more formidable threshold over which
an applicant must engage than was the case. Previously the test was whether there
was a reasonable prospect that another court might come to a different conclusion …
The fact that the Superior Courts Act now employs the word “would” as opposed to
23 Democratic Alliance v President of the Republic of South Africa and others (21424/2020) [2020]
ZAGPPHC 326 (29 July 2020) (coram: Mlambo JP, Davis JP and Molefe J) .
12
“might” serves to emphasise this point. As the Supreme Court of Appeal said in Smith
v S 2012 (1) SACR 567 (SCA) at para 7 :
‘More is required to be established than that there is a mere possibility of success,
that the case is arguable on appeal or that the case cannot be categorised as hopeless.
There must in other words be a sound, rational basis for the conclusion that there are
prospects of success on appeal.’
[5] …
[6] The second basis upon which leave should be granted is that there is a compelling
reason, that is apart from the existence of conflicting judgments on the matter under
consideration which require clarification from a higher court. In essence the
compel ling reason is whether the case raises issues of significant public importance.
[24] The above legal principles do not pr ofess to constitute a compendium of all legal
principles currently finding application in respect of leave to appeal . But they – together with
case law cited above , courtesy of counsel in this matter - will provide useful aids in the
discussion to follow on the grounds of the intended appeal .
Grounds of appeal and submissions (for and against the granting of leave to appeal) -
discussed
General
[25] Letsema has raised a number of grounds for its intended appeal against the Judgment.
Equally, a number of issues have been raised on behalf of SA Tourism in opposition to
Letsema’s case in the Leave to Appeal.
[26] Some of these grounds or issues deserve specific attention due to their impact o n the
disposition of this application. In some instances the issues or grounds are discuss ed jointly
due to interlinkages which may be apparent from the subheadings . But, as I consider the
Judgment comprehensive in nature and extent, I intend to strive for brevity in the discussion of
these issues.
Letsema is innocent and reasonably relied on assurances and representations by Mr Ntshona
[27] Letsema ’s primary point of contestation has been and remains that it acted reasonably
in relying on the assurances and representations by Mr Ntshona , the then CEO of SA Tourism ,
13
that TBCSA would contract for and pa y for the services by Letsema . Letsema , similarly to the
Executive Committee of SA Tourism , was misled by Mr Ntshona ’s deliberate
misrepresentation s, the assertion con tinues . According to Letsema it did not engage in any
wrongdoing and, thus, it is an innocent party in this matter . This is disputed by SA Tourism.
[28] I did not directly rule on Letsema’s self-proclaimed innocence in the Judgment. Such
ruling or finding was unnecessary amidst my findings of Letsema ’s knowledge of the absence
of the requisite competitive procurement process relating to its appointment .24 I also rejected
the so-called ‘assurances’ given by Mr Ntshona to Mr Harris of Letsema .25 Reliance o n such
‘assurances’ under the circumstances of this matter was always devoid of any reasonableness
and inimical to Letsema’s claim of innocence. Therefore, I search in vain for merit in th is part
of the grounds for the intended appeal.
Not just and equitable for SA Tourism to receive services at a reduced price
[29] It is further argued on behalf of Letsema that SA Tourism, as an organ of state, should
not benefit – by receiving services in question at a reduced price – when its own CEO acted
unlawfully by making the misrepresentations which led to the delivery of the material services.
[30] It is also submitted in this regard that this C ourt misdirected itself and erred by failing
to find that a just and equitable remedy required that a declaration of invalidity would not have
the effect of divesting Letsema of rights to which it would otherwise have been entitled, but
for the declaration of invalidity. But I do not agree that this is an outcome cast in stone for this
type of judicial review s, otherwise the objective would be lost. Why should the organs of state
and the courts go into the trouble of reviewing the unlawful procurement when the outcome is
always certain : no interference with the private party’s rights . The remedy imposed in the
24 Pars [109] -[110] of the Judgment, CaseLines 00-38 to 00 -39.
25 Par [110] of the Judgment, CaseLines 00-39.
14
Judgment sought to balance the rights of both the organ of State, being SA Tourism, and
Letsema, the private party. The Judgment does not interfere with payment made by SA Tourism
for the services rendered by Letsema up to the reasonable cost of such service s and not hing
more or less .26 I agree with counsel for SA Tourism that the case law relied upon by Letsema
do not support the proposition advanced in this regard.
[31] Also, any anxieties regarding forensic accountin g which would be required to give
effect to the Orders cannot serve as a basis to appeal against the Orders or the Judgment. I did
not see any other way of subjecting the unlawful payments made to Letsema to scrutiny without
requiring Letsema to provide SA Tourism ‘ with a detailed breakdown of its reasonable
expenses with supporting vouchers relating to the monies received ’.27 Besides, i t is not
unreasonable to expect that any objective and competitive public procurement process of the
same services would have required similar details to be set out in the bids, including by
Letsema , for assessment by SA Tourism before awarding the tender . Competitive bids factor -
in value relating to ‘ intellectual capital, expertise, and intangible contributions ’ in a manner
‘reasonably susceptible to quantification as profits ’. They ought to, lest the figures or details
provided would not comport with a ‘fair, equitable, transparent, competitive and cost-effective ’
procurement , required for organs of state .28 Therefore, there is nothing im practical and
inequitable about this pending exercise in terms of the Orders .
[32] I agree that the just and equitable remedy proposed or the part relating to quantification
exercise was not ventilated in the main application. But, I also agree with submissions on behalf
of SA Tourism that the nature and extent of the possible repayment by Letsema is not yet
26 Pars [115] -[116] of the Judgment, CaseLines 00-40 to 00 -41.
27 Par [122]d)ii) of the Judgment, CaseLines 00-44.
28 Section 217(1) of the Constitution .
15
known and, therefore, Letsema’s quest to embark on an appeal may be a fault start. The latter
issue, actually, takes me to the next issue for discussion : is it not premature to appeal the Orders .
Is it not premature to appeal the Orders?
[33] SA Tourism says that the Orders, particularly the just and equitable relief granted, is
not final in effect, and , therefore, it is not in the interests of justice to appeal against same at
this stage. The Court is still to determine the amount repayable by Letsema to SA Tourism , if
any. The latter would constitute a final order which would be competent of an appeal .
[34] I agree with c ounsel that the current position of the law is that appealability of an order
or judgment of the Court is to be decided on the basis of the interests of justice.29 And that the
common law requirements of whether an order sought to be ‘ appealed against has final effect
or is dispositive of a substantial portion of the relief claimed ’ are not irrelevant to the
determination , but only subsumed by the constitutional standard of interests of justice .30 Part
of the focus of the Court in this regard is to guard against the pursuit of appeal s on a piecemeal
basis , which would be inherently not cost-effective and delay finalisation of litigation .31 The
latter eventualities do not serve the interests of justice .
[35] Counsel for Letsema argued at the hearing of the Leave to Appeal that paragraph
122(d)(i) of the Judgment , declar ing that the payments made by SA Tourism to Letsema
pursuant to the unlawful appointments ‘should not include monies representing profits on the
payment received from the appointment ’,32 is final in effect and would not be dealt with in the
subsequent process in terms of the Orders. I agree. Although, this part of the Orders - as
29 SCAW at [41]. See par [15] above, for further discussion.
30 SCAW at [56]; Tshwane City v Afriforum 2016 (6) SA 279 (CC) [40] ; Eskom Holdings Soc Ltd and another
v Sonae Arauco (Pty) Ltd (1018/2023) [2024] ZASCA 177 (18 December 2024) [36]. S ee also Government
of the Republic of South Africa and Others v Von Abo 2011 (5) SA 262 (SCA); [2011] 3 All SA 261 (SCA)
[17] and par [15] above, for further discussion.
31 TWK [21]; Minmetals [33]; Zweni at 532 -533; Eskom Holdings v Sonae Arauco [2024] ZASCA 177 [35].
See also Government of the Republic of South Africa v Von Abo 2011 (5) SA 262 (SCA); [2011] 3 All SA
261 (SCA) [17].
32 Judgment par [122]d)i) , CaseLines 00-44.
16
correctly pointed out by counsel for SA Tourism is still dependent in effect on the
determination of the monies possibly repayable by Letsema to SA Tourism – paragraph
122(d)(i) of the Judgment by and of itself is final. The form or appellation o f the order should
yield to the effect of the order in this regard .33 I also find that it would not be in the interests of
justice to allow the remainder of the just and equitable remedy , envisaged in paragraph
122(d)(ii)-(iv), to unfold on the basis or trigger of paragraph 122( d)(i) when the latter part of
the order is clearly operative and final.
Costs order unfair and appealable
[36] Letsema is also dissatisfied with the Costs Order that ‘ each party shall be responsible
for its own costs ’.34 Letsema contends that it was substantially successful in fending off SA
Tourism’s ‘cynical and self -serving ’ application for review . In the main, Letsema points to the
fact that this Court did not accede to SA Tourism’s attempt s to cause Letsema to be ordered to
repay everything receive d from SA Tourism. Therefore, the Court misdirected itself by
awarding costs on the basis done in the Judgment, the contention on behalf of Letsema
concludes.
[37] Letsema’s contentions are disputed by SA Tourism includ ing on the basis that the C ost
Order is correct , as Letsema was not successful . And, that there is no factual and legal basis
warranting interference by an appe llate c ourt with th e exercise of discretion by this Court. I
concl ude on th ese and other issues above, next.
Conclusion and Costs
[38] Although I have sought to allow Letsema to retain part of the monies paid by SA
Tourism representing vouched ‘reasonable expenses’,35 it is clear from the rest of the Judgment
33 SCAW at [53]; United Democratic Movement and another v Lebashe Investment Group (Pty) Ltd and
others 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC) [41].
34 Judgment par [122]e), CaseLines 00-44.
35 Judgment par [122] d)ii), CaseLines 00-44.
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that I have denied Letsema anything suggestive of ‘profits’ from the monies received.36 This
represent the so -called ‘no profit principle’ whose origin now appears to be of legendary .
Counsel for Le tsema was emphatic in pointing out that the ‘no profit principle’ did not arise
from Allpay although it may be from m isapplication of the call in that case to subject benefit
derive d by a private party not beyond public scrutiny .37 This seems probable .
[39] I am, therefore, convinced that the appeal intended by Letsema would have a reasonable
prospect of success.38 Further, current case law on the issue of the nature and extent of
curtailment of the rights acquired by a private party in procurement declared unlawful by the
Court is unclear. I have in mind the vexed question whether the private party may be stripped
of all or part of what may represent profit from the services rendered or product delivered in
terms of the procurement or appointment found unconstitutional and unlawful. This re presents
‘some other compelling reason why the appeal should be heard ’.39
[40] But, I find myself unable to draw the same conclusion with regard to the intended appeal
against the Cost Order . Nonetheless , as the Cost O rder is intricate to (and natural consequence
of) the Orders , the appellate court seized with the prospective appeal may consider it warranted
to address all issues as part o f the determination on the just and equitable remedy granted by
this Court. Therefore, I will refrain f rom restraining the parameters of the appeal on any basis,
including the Cost Order .
[41] Consequently, I would grant the Leave to Appeal. And due to the greater need for clarity
and certainty , as well as author itative pronouncement on the material issues of public
36 Judgment pars [115] -[116], CaseLines 00-40 to 00 -41.
37 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African
Social Security Agency and Others 2014 (4) SA 179 (CC) (‘Allpay ’) [67].
38 Section 17(1)(a)(i) of the Superior Courts Act. See par s [22]-[23] above.
39 Section 17(1) (a)(ii) of the Superior Courts Act . See par s [22]-[23] above.
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importance , I will grant Letsema leave to appeal to the Supreme Court of Appeal. The costs of
this Leave to Appeal shall be costs in the appeal.
Order
[42] In the premises, I make the following order:
a) leave to appeal to the Supreme Court of Appeal is granted , and
b) costs of th is application for leave to appeal is to be cost s in the appeal.
___________________________
Khashane La M. Manamela
Acting Judge of the High Court
Date s of Hearing : 28 February 2025
Date of Judgment : 22 April 2025
Appearances :
For Applicant (SA Tourism) : Mr K Tsatsawane SC (with Ms N Makhaye)
Instructed by : Diale Mogashoa Inc, Pretoria
For the First Respondent (Letsema) : Mr G Budlender SC (with W van Aswegen)
Instructed by : Phatshoane Henney Inc, Bloemfontein
c/o Tiaan Smuts Attorneys, Pretoria