IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of interest lo other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case no: 4343/2021
In the matter between:
INGEROP SOUTH AFRICA (PTY) LTD Applicant
and
BLOEM WATER
THE MINISTER OF WATER AND SANITATION First Respondent
Second Respondent
Neutral Citation:
Coram:
Heard:
Delivered:
Summary: lngerop South Africa (Pty) Ltd v Bloem Water & 1 Other
(4343/2021)
Van Zyl, J
12 September 2024
12 March 2025
Application for payment of debt based on acknowledgement of debt. Alleged
unlawful contract. Earlier review application which deals with the same dispute
between the same parties removed from the roll due to absence of Court·s
jurisdiction not a final outcome and review remains pending where there is an
application in terms of section 27(1 )(a) of the Superior Courts Act, 10 of 2013. Point
in limine of /is pendens upheld. Application is stayed pending the final adjudication
of the review application. •
ORDER
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1. The point in limine of /is pendens is upheld and the application is stayed
pending the final adjudication of the review application issued under case
number 5403/2022.
2. The costs of the application stand over for later adjudication.
JUDGMENT
Van Zyl, J
[1] The applicant approached Court by means of application proceedings ('the
application') in which the following relief as set out in the Notice of Motion is being
sought:
'1. Judgment be granted against the First Respondent for payment:
1.1 in the amount of R35,102,773.17 (incl VAT); and
1.2 interest on the aforesaid amount at the rate of 10,5% per annum a
tempore morae;
2. The First Respondent be ordered and directed to pay the costs of this
application on the scale as between attorney and own client;
3. Further, other and/or alternative relief.'
Background:
[2] I do not intend to repeat a complete summary of the background facts as set
.out in the affidavits of the respective parties. I will only refer to the main aspects
relevant to the application .
[3] The applicant ('lngerop') issued the application on 20 September 2021 and it
is being opposed by the first respondent ('Bloem Water') The second respondent
('the Minister') filed a Notice to Abide on 22 November 2022.
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[4] The application was instituted against Sedibeng Water, a water board which
was established in terms of section 28 of the Water Services Act, 108 of 1997. On
26 July 2022 the Minister disestablished Sedibeng Water and transferred the staff,
assets and liabilities of Sedibeng Water to Magalies Water and Bloem Water. On 1
August 2022 Bloem water took over the rights and obligations of Sedibeng Water,
part of which include the Vaal Gamagara Water Supply Scheme ('the project').
[5] The application emanates from a contract concluded between Sedibeng Water
and lngerop on 7 April 2017 in terms of which lngerop was appointed to render
certain consulting engineering and project management services for and on behalf
of Sedibeng Water in relation to the project. lngerop avers that Sedibeng Water
(now Bloem Water) breached the terms of the contract and is owing lngerop the
amount of R35 102 773.17 (including VAT), together with interest thereon.
[6] Bloem Water is opposing the application on the basis that the tender process
followed by Sedibeng Water which resulted in the appointment of lngerop was not
in compliance with section 217 of the Constitution of the Republic of South Africa, .
1996, read together with the Public Finance Management Act, 1 of 1999, the
Preferential Procurement Policy Framework Act, 5 of 2000 and the Supply Chain
Management Policy of Sedibeng Water. It is consequently the case of Bloem Water
that the decision of Sedibeng Water to have appointed lngerop could not have been
arrived at through a fair, lawful and transparent process. It needs to be mentioned
that Bloem Water filed its answering affidavit to the application only on 29 August
2024.
[7] Bloem Water is also opposing the application on the basis of a 'legality self
review' ('the review') to set aside the decision of Sedibeng water to have appointed
lngerop to attend to the project and to have the contract referred to above, set aside
on the same basis as the opposition to the application. The said review was
instituted on 31 October 2022 under case number 5403/2022. I will return to the
review.
[8] On 30 December 2021 Sedibeng Water instituted action proceedings against
lngerop for the payment of R65 894 027.16 for alleged unjustified payments made
to it emanating from the aforesaid contract concluded between Sedibeng Water and
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lngerop. T~e action is being defended by lngerop and at the date of the hearing.of
the application, the action proceedings were still pending.
The review application:
[9] In terms of the review application Bloem Water is seeking/sought, inter alia,
the following relief:
'1. The decision and conduct of the erstwhile water board, Sedibeng Water, in
purportedly appointing alternatively purportedly extending the appointment of
the first respondent for the provision of project management services . . . be
reviewed and set aside;
2. Declaring that the decision and conduct of the erstwhile water board, Sedibeng
Water, in purportedly appointing alternatively purportedly extending the
appointment of the first respondent for the provision of project management
services . . . beyond 14 November 2019, is invalid, unlawful and
unconstitutional;
3. Declaring the letter of Sedibeng Water's erstwhile water board acting chief
executive, dated 25 August 2021, is invalid, null and void ab initio;'
[1 O] On 5 February 2024 Musi, JP made the following order in the application:
'The matter is kept in abeyance pending the outcome of the Rule 53 Review in case
5403/2022.'
[11] Bloem Water dealt in its answering affidavit filed in the application with the
review and its further course and the alleged consequences thereof, as follows:
'74. The review application is duly opposed by the Applicant and is still pending.
75. On 22 April 2024, the First Respondent instituted an interlocutory application
for leave to file a supplementary affidavit ("application for leave"). This
application was duly opposed by the Applicant.
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76. The review application was subsequently set down for hearing on 29 and 30
July 2024.
77. On 29 July 2024, the Court sought to resolve preliminary issues prior to it
considering the review application . The Court heard the application for leave,
as well as the Applicant's point in limine regarding the Court's jurisdiction to
hear the matter.
78. The Court, pursuant to a mistake common to the parties on the manner in which
proceedings would proceed, heard the application for leave. The Court then
handed down an order for the dismissal of the said application for leave.
79. Thereafter, the Court considered the Applicant's point in limine regarding the
Court· s jurisdiction .
80. Having considered argument from the parties, the Court found that it did not
have jurisdiction to entertain the matter. To this end, the Court· s finding that it
had no jurisdiction rendered the Court·s earlier order to dismiss the application
for leave is a mistake, alternatively void. A copy of the Court's Order is attached
hereto as annexure "M14".
81. In order to correct the Court's Order, the First Respondent has instituted an
application to vary the Court· s Order, as well as have the review application
duly transferred to the Gauteng Local Division of the High Court of South Africa.
I attach hereto a copy of the Notice of Motion of the said application , as
annexure "M15".
FIRST POINT IN LIMINE -LIS PENDENS
83. The review application is still pending and has not been disposed of.
90. Applying these principles to the facts of this case, it is quite apparent that the
decision of Sedibeng Water to appoint the Applicant could not have been
arrived at through a fair, lawful and transparent process.
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91. The determination of the review application has a direct impact on the relief
sought by the Applicant before this Honourable Court. As such it would not be
convenient, nor equitable in the circumstances for these proceedings to
continue whereas the review application is still pending.
92. There is accordingly litigation pending between the parties on the same cause
of action and in respect of the same subject-matter.
93. Wherefore the First Respondent prays that the Applicant's present application
be stayed pending the final determination of the review application, as well as
an order for the Applicant to pay the First Respondent's costs.'
[12] Mr Makgato, assisted by Mr Qithi, appearing on behalf of Bloem Water,
submitted that the Order in respect of the lack of jurisdiction in respect of the review
and its subsequent removal from the roll, does not constitute an 'outcome' of the
review as stated in the Order of Musi, JP. The finding in respect of the lack of
jurisdiction merely delays the outcome of the review and is not a finding on the
merits thereof; similar to a special plea which is a dilatory plea. 'Outcome' is to be
considered objectively to mean after the final adjudication on the merits of the
review, including a possible appeal process.
[13) Mr Troskie, appearing on behalf of lngerop, submitted that the finding of lack
of jurisdiction is not similar to a dilatory plea, since a finding of lack of jurisdiction
has the result that the review constitutes a nullity. The only further Order which can
still be made in relation to the review, is one of a procedural nature. He therefore
submitted that the finding in relation to a lack of jurisdiction and the removal of the
review from the roll, constituted the 'outcome' of the review as referred to in the
Order of Musi, JP.
[14) Section 27(1) of the Superior Courts Act, 10 of 2013 ('the Act'), reads as
follows;
'(1) If any proceedings have been instituted in a Division or at a seat of a Division,
and it appears to the court that such proceedings-
(a) should have been instituted in another Division or at another seat of that
Division; or
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(b) would be more conveniently or more appropriately heard or determined
(i) at another seat of that Division; or
(ii) by another Division,
that court may, upon application by any party thereto and after hearing all other
parties thereto, order such proceedings to be removed to that other Division or seat,
as the case may be.'
[15] DE van Loggerenberg, Erasmus: Superior Court Practice, at OS, 2023, 0-248
& RS 4, 2024 D-249, contains the following insightful discussion on section 27(1)(a)
of the Act, with reference to applicable authority. In order to read it in perspective, I
deem it necessary to quote it quite extensively [footnotes omitted]:
'General. Section 9 of the now repealed Supreme Court Act 59 of 1959 provided for
the removal of civil proceedings from one High Court to another upon application by
any party to such proceedings if such proceedings could be more conveniently or fitly
heard or determined by the other court. Section 3 of the Interim Rationalisation of
Jurisdiction of High Courts Act 41 of 2001, which came into operation on 5 December
2001, and was repealed by s 55(1 )(a) of the present Act, contained a similar
provision but added another ground for removal, viz that the proceedings should have
been instituted in another High Court. The reasons for the overlapping of the
provisions of s 9 of the Supreme Court Act 59 of 1959 and s 3 of the Interim
Rationalisation of Jurisdiction of High Courts Act 41 of 2001 were unclear.
In Ngqula v South African Airways {Ply) Ltd the Supreme Court of Appeal held that
as a removal was permitted by the Interim Rationalisation of Jurisdiction of High
Courts Act 41 of 2001, it might follow that a party deprived of its right to obiect to the
court's iurisdiction in consequence of the case having been transferred to a court
having iurisdiction, could not complain of either the loss of its plea to the iurisdiction
or the loss of any advantage that would otherwise flow from that plea being upheld,
such as the acquisition of a defence of prescription if the plaintiff instituted action
afresh. The Supreme Court of Appeal held that so viewed, the legislation provided a
means for overcoming challenges to the iurisdiction of the different High Courts by
treating such challenges as procedural in character, but that the possibility that, for
purposes of prescription, the institution of proceedings in a court not possessing
jurisdiction might be regarded as ineffective to interrupt prescription , could not be
ruled out. The Supreme Court of Appeal held that in such a case the transfer might
properly be treated as if it were the commencement of a fresh action constituting an
effective interruption .
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In a long line of cases decided under s 9(1) of the now repealed Supreme Court Act
59 of 1959 and the similarly worded predecessors to that section in earlier legislation,
it was held that a court that had no jurisdiction to decide a particular case, also had
no jurisdiction to deal with that case by transferring it to another court.
In Road Accident Fund v Rampukar; Road Accident Fund v Gumede the Supreme
Court of Appeal held that s 3(1 )(a) of the (now repealed) Interim Rationalisation of
High Courts Act 41 of 2001 was intended to alleviate the predicament of the litigant
who mistakenly (and regardless of the reason for the mistake) instituted civil
proceedings in the incorrect High Court by granting that High Court the discretion to
come to the aid of the litigant and order the removal of those proceedings to the
correct High Court. The court held thats 3(1 )(a) did not bestow the transferring court
with jurisdiction to entertain and decide the main dispute; all it did was to afford the
transferring court the limited jurisdiction to transfer the matter to the court with proper
jurisdiction under s 19(1) of the (now repealed) Supreme Court Act 59 of 1959 to
determine the disputes between the parties.' [My emphasis]
[16) From the aforesaid discussion it is in my view evident that an Order that a
particular Division of the High Court does not have jurisdiction to adjudicate a matter
and there is an application pending for the matter to be removed to another Division
which does have jurisdiction, such matter ·cannot be considered to have been
disposed' of. The matter remains pending in the first Division pending the
adjudication of the application in terms of section 27(1 )(a).
[17) Therefore, in my view, the Order in relation to the lack of jurisdiction and the
subsequent removal from the roll did not constitute the "outcome" of the review as
referred to in the order of Musi, JP. The said Order of Musi, JP is therefore still valid
and in in force. The application is consequently, already for this reason, to be stayed
pending the final adjudication of the review application issued under case number
5403/2022 .
First point in Jimine in the application -Lis pendens:
[18) Mr Makgato referred to the judgment of Wingprop (Pty) Ltd V Bahlekazi and
Others (28781/2021) [2023) ZAGPJHC 526 (19 May 2023), para 12 where the Court
stated as follows in respect of /is pendens:
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'Lis alibi pendens is a dilatory defence in which a respondent seeks a stay of
proceedings on the basis that there is pending prior litigation between the
same parties, based on the same cause of action, in respect of the same
subject matter. The party raising this defence bears the onus of proving these
requirements. Moreover, a court cannot grant a stay to a respondent who has
not pleaded /is alibi pendens.'
[19] The doctrine of /is pendens was explained in Caesarstone Sdot-Yam Ltd v The
World of Marble and Granite 2000 CC and Others (741/12) [2013] ZASCA 129;
2013 (6) SA 499 (SCA); [2013] 4 All SA 509 (SCA) (26 September 2013), paras 2
-3 as follows:
[2] As its name indicates, a plea of /is alibi pendens is based on the proposition that
the dispute (/is) between the parties is being litigated elsewhere and therefore it is
inappropriate for it to be litigated in the court in which the plea is raised. The policy
underpinning it is that there should be a limit to the extent to which the same issue is
litigated between the same parties and that it is desirable that there be finality in
litigation. The courts are also concerned to avoid a situation where different courts
pronounce on the same issue with the risk that they may reach differing conclusions.
It is a plea that has been recognised by our courts for over 100 years.
[3] The plea bears an affinity to the plea of resjudicata, which is directed at achieving
the same policy goals. Their close relationship is evident from the following passage
from Voet 44.2. 7:
'Exception of lis pendens a/so requires same persons, thing and cause. -The
exception that a suit is already pending is quite akin to the exception of res
judicata, inasmuch as, when a suit is pending before another judge, this
exception is granted just so often as, and in all those cases in which after a suit
has been ended there is room for the exception of res judicata in terms of what
has already been said. Thus the suit must already have started to be mooted
before another judge between the same persons, about the same matter and
on the same cause, since the place where a judicial proceeding has once been
taken up is also the place where it ought to be given its ending.'
[20] The issue regarding the legality of the appointment of lngerop in respect of the
project or the extension of its appointment and hence ·the legality of the contract,
already forms the subject matter in dispute between the same parties in the review.
It must be for the same reason that the attorney of lngerop was of the view that the
application and Sedibeng ·s (Bloem Water's) action proceedings could and should
not substantively dealt with before the hearing of the review. This was expressly
stated by the attorney of lngerop in paragraph 2 of the letter dated 12 January 2024,
addressed to the attorneys of Bloem Water, attached to the answering affidavit as
annexure 'AA20'. The Order by Musi, JP followed subsequent hereto.
[21] Although the application was filed before the review, the practical fact is that
the answering affidavit of Bloem Water has only been filed after the hearing of the
review and the review, therefore, served before Court before the application. It is
consequently not correct, as stated in the replying affidavit of lngerop, that 'it was
the issues raised in the review application that could have been subject to being
dismissed on the basis of /is pendens solely because the review came to exist after
this application'.
[22] Although lngerop complains about the late filing of the answering affidavit of
Bloem Water, lngerop did not and is not seeking any relief from Court in relation
thereto.
[21] The following was stated at paragraph 15 of the replying affidavit of lngerop
and also submitted on its behalf:
'Thirdly, and in any event, the issues which were dealt with in the review stand in stark
comparison to the issues to be determined in this application . The review concerned
inter a/ia the alleged unlawful award of a contract to the Applicant. This application
concerns only the First Respondent's failure to comply with two acknowledgements
of debt it gave. The issues are not the same.'
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[23] However, at paragraph 106.2 of the answering affidavit of Bloem Water, Bloem
Water specifically stated as follows in response to lngerop's reliance on the
acknowledgements of debt
'The purported admission of debt and undertakings made by officials of Sedibeng
Water, upon which the Applicant seeks to base its claim, are the subject of the review
application.'
[24] Furthermore, Mr Troskie is relying on Oudekraal Estates (Ply) Ltd v City of
Cape Town and Others 2004 (6) SA 222 (SCA), as confirmed by the Constitutional
Court in Mamadi v Premier, Limpopo and Others 2024 (1) SA 1 (CC). In the last
mentioned judgement the Court confirmed at paragraph 32 as follows:
'Administrative decisions, until set aside by a court, exist in fact and have legal
consequences.'
[25] In this regard the following is stated at paragraph 21.6 of the replying affidavit
of lngerop:
'I am furthermore informed that, even if it was to be found that the award and
extension of the contract were invalid due to some administrative shortcoming, until
such time as it had been set aside by a Court of competent jurisdiction, the award
and extension of the contract existed.in fact and it had legal consequences.'
[26] The aforesaid is exactly why the review is to be finally adjudicated upon before
the application. Otherwise, the relief sought and the findings made in the application
will be final in effect, whilst the legality of the appointment or extension of
appointment of lngerop already forms the subject matter of the review. It may result
in a situation where two different Courts will pronounce on the same issue,
potentially reaching different conclusions.
[27] In my view the point in limine of /is pendens is to be upheld and the application
is to be stayed pending the final adjudication of the review application issued under
case number 5403/2022.
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Other issues raised in the application:
(28] Considering my aforesaid findings, I deem it unnecessary to deal with the further
issues raised in the application.
Costs:
[29] In my view the final adjudication of the review may have a substantive impact
on the application and its outcome . .The Judge who will eventually be presiding over
the application after the finalisation of the review, will be in a better position to
adjudicate the issue of costs than what I am.
[30] I consequently consider it fair to both parties that the costs of the application
stand over for later adjudication.
Order:
[31] The following order is made:
1. The point in limine of /is pendens is upheld and the application is stayed
pending the final adjudication of the review application issued under case
number 5403/2022.
2. The costs of the application stand over for later adjudication.
Appearances
For the applicant:
Instructed by: Adv. AJ Troskie SC
Tiefenthaler Attorneys Inc
Clo Honey Attorneys
Bloemfontein
E-mail: steven@constructionlaw .co .za
derik@constructionlaw.co.za
rochelle@honeyinc.co.za
For the first respondent:
Instructed by: Adv. MC Makgato
Assisted by:
Adv. V Qithi
Pharnbane Mokone Inc
Clo Symington & De Kok Attorneys
Bloemfontein.
E-mail: simon@phambaneattorneys.co.za
kmakwaba@symok.co.za 13