THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1293/2021
In the matter between:
SOUTH AFRICAN FORESTRY COMPANY
SOC LTD APPELLANT
and
COLLINS SEBOLA FINANCIAL
SERVICES (PTY) LTD FIRST RESPONDENT
TSEPO MONAHENG SECOND RESPONDENT
CLEMENT NHUVUNGA THIRD RESPONDENT
CHAIRPERSON OF THE BID SPECIFICATION
COMMITTEE OF THE APPELLANT FOURTH RESPONDENT
CHAIRPERSON OF THE BID EVALUATION
COMMITTEE OF THE APPELLANT FIFTH RESPONDENT
CHAIRPERSON OF THE BID ADJUDICATION
COMMITTEE OF THE APPELLANT SIXTH RESPONDENT
PHEPHA MV SECURITY SERVICE SEVENTH RESPONDENT
2
CHAIRPERSON OF THE AUDIT
COMMITTEE OF THE APPELLANT EIGHTH RESPONDENT
CHAIRPERSON OF THE FINANCIAL
COMMITTEE OF THE APPELLANT NINTH RESPONDENT
PHUTHADICHABA TRADING ENTERPRISE CC TENTH RESPONDENT
Neutral citation: South African Forestry Company SOC Ltd v Collins Sebola
Financial Services (Pty) Ltd and Others (Case no 1293/2021)
[2023] ZASCA 18 (24 February 2023)
Coram: PONNAN ADP, GORVEN, MOTHLE, WEINER and GOOSEN JJA
Heard: 20 February 2023
Delivered: 24 February 2023
Summary: Section 16(1)(a)(i) of the Superior Courts Act 10 of 2013 – contracts
pursuant to award of tenders to expire before an order on appeal can be enforced –
no practical effect of decision – appeal dismissed.
3
__________________________________________________________________
ORDER
______________________________________________________________________________
On appeal from: Gauteng Division of the High Court , Pretoria (Basson J), sitting
as court of first instance:
The appeal is dismissed with costs.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Gorven JA (Ponnan ADP, Mothle, Weiner and Goosen JJA concurring)
[1] This appeal arose from the award of a tender put out by the South African
Forestry Company SOC Ltd (SAFCOL), the appellant. It is a State Owned Company
and the third largest forestry company in South Africa. The appeal was opposed by
only Collins Sebola Fi nancial Services (Pty) Ltd (Collins Sebola), the first
respondent. The tender, RFB 011/2019, was for security services , including forest
guards, required in the regions in which SAFCOL conducts its forestry operations
and for its business units. Each region comprises a number of plantations.
[2] Three bids were regarded as compliant, that of Collins Sebola, that of Phepha
MV Security Services (Phepha), the seventh respondent, and th at of Puthadichaba
Trading Enterprise CC, the tenth respondent. The outcome was that , instead of
awarding a contract for all of the required security services to a single service
provider, two contracts were awarded. The bid of Collins Sebola succeeded for
4
certain plantations, forest guards and business units , while the bid of Phepha
succeeded for the balance of the services required. Pursuant to this, contracts were
concluded with both Collins Sebola and Phepha for provision of the services for
which their bids succeeded. That of Collins Sebola was worth R 18 285 386.27 and
that of Phepha R 62 193 884.32. Those contracts, for a three year period, were put
into effect and remain extant. The contract periods will expire by effluxion of time
on 31 March 2023.
[3] Aggrieved at the failure of SAFCOL to award it the entire tender, Collins
Sebola approached the Gauteng Division of the High Court, Pretoria (the high court),
to review and set aside the award to Phepha . Collins Sebola also sought an order
awarding to it those parts of the tender awarded to Phepha.
[4] The high court, per Basson J, granted the relief sought by Collins Sebola and
refused an application by SAFCOL for leave to appeal. The appeal came before us
with the leave of this Court.
[5] When the matter was ca lled, enquiries were made of each counsel as to
whether the provisions of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 applied
to the appeal in view of the contracts expiring on 31 March 2023. Section 16(1)(a)(i)
provides:
‘When at the hearing of an appeal the issues are of such a nature that the decision sought will have
no practical effect or result, the appeal may be dismissed on this ground alone.’
Both counsel candidly conceded that the appeal fell squarely within the provisions
of s 16(2)(a)(i). If the appeal succeeded, the status quo concerning the continued
implementation of the contracts would obtain. On the other hand, if the appeal was
dismissed, it would not be feasible for Collins Sebola to take over and render the
5
services currently rendered by Phepha within the contract period. Not only that, but
Collins Sebola undertook not to attempt to do so.
[6] In those circumstances, and on that basis, both counsel acknowledged that the
appeal should be dismissed. Costs must follow the result and SAFCOL did not
contend otherwise.
[7] In the result, the appeal is dismissed with costs.
____________________
T R GORVEN
JUDGE OF APPEAL
6
Appearances
For appellant: V Maleka SC
Instructed by: AT Mpungose & Dlamini Incorporated, Pietermaritzburg
Matsepes Incorporated, Bloemfontein
For respondent: Q Pelser SC
Instructed by: Tambani Matumba Attorneys, Makhanda
Hendre Conradie Incorporated, Bloemfontein