SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG

Case no: AR36/2024P

In the matter between:

NOMBELA INVESTMENTS CC APPELLANT

and

EZEMVELO KZN WILDLIFE RESPONDENT


Coram : Poyo Dlwati JP, Mossop J and Sibisi AJ
Heard : 24 January 2025
Delivered : 21 February 2025


ORDER


On appeal from: KwaZulu -Natal Division of the High Court, Pietermaritzburg
(Radebe J sitting as court of first instance)
1. The appeal is allowed, and the order granted by Radebe J on 2 December
2022 is set aside and replaced with the following order:
‘The application is dismissed with costs.’
2. The respondent shall pay the appellant’s costs, including the costs
consequent upon the employment of two counsel (where so employed):
(a) In the application for leave to appeal before Radebe J on 12 July 2023;
(b) In the application for leave to appeal to the Supreme Court of Appeal; and
2

(c) In the appeal before the full court , with the costs on appeal before the full
court to be taxed on scale C .


JUDGMENT



MOSSOP J (POYO DLWATI JP and SIBISI AJ concurring ):

Introduction
[1] This is an appeal against an order granted by Radebe J o n 2 December 2022 .
The respondent, a state -owned enterprise, brought a legality review against its own
decision to award a tender , identified as B[...] E[...] 2[...] , to the appellant , a close
corporation . The application was favourably viewed by Radebe J , who granted the
following order:
‘1. The Applicant’s award of tender B[...] E[...] 2[...] to the Respondent is hereby
declared unlawful.
2. The Applicant’s award of tender B[...] E[...] 2[...] to the Respondent is hereby
reviewed and set -aside (sic).
3. The Service Level Agreement concluded between the Applicant and the
Respondent pursuant to bid number E[...] 2[...] is hereby declared unenforceable
from the date of 3 February 2020;
4. The Respondent is ordered to pay the costs of this application including costs
of Senior Counsel.’
I shall refer to this as ‘the order ’.

Leave to appeal
[2] The appellant, dissatisfied with the order, sought leave to appeal from the
court a quo . Several grounds were cited in its application for leave to appeal , but,
despite this, the appellant’s application was only marginally successful. Radebe J
granted it leave to appeal to the full court of this division on a single ground, namely :
3

‘… in respect of the ground of just and equitable action, with reference to Section
172(1)(b) of the Constitution Act No. 108 of 1996.’1

Leave to appeal from the Supreme Court of Appeal
[3] Leave to appeal on that limited ground did not satisfy the appellant , who then
approached the Supreme Court of Appeal (the SCA) in order t o broaden the grounds
of appeal to include the entire order granted by Radebe J . In this it was successful ,
for on 6 October 2023 , the SCA granted an order that reads as follows:
‘1. Condonation as applied for is granted. The applicant [f]or condonation is to
pay the costs of the application.
2. Leave to appeal is granted to the Full Court of the KwaZulu Natal Division of
the High Court, Pietermaritzburg. Leave to appeal is in respect of the whole
judgment and order of the High Court.
3. The costs order of the court a quo in dismissing the application for leave to
appeal is set aside AND the costs of the application for leave to appeal in this court
and the court a quo are costs in the appeal. If the applicant does not proceed with
the appeal, the applicant is to pay these costs.’

[4] Before us, therefore, is an appeal against the full order granted by Radebe J.

Background facts
[5] Before considering the merits of the appeal , the factual context to the litigation
must be considered because , as the SCA has previously remarked , ‘[c]ontext is
paramount ’.2

[6] The respondent owns and runs several resorts in wildlife parks that it controls .
It, inter alia, provide s overnight accommodation against payment of a fee to

1 Section 172(1) (b) reads as follows:
‘When deciding a constitutional matter within its power, a court -
(a) …
(b) may make any order that is just and equitable, including -
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow
the competent authority to correct the defect.’
2 Transnet SOC Ltd v Tipp -Con (Pty) Ltd and others [2024] ZASCA 12 para 9.
4

members of the public visiting those wildlife park s. Those resorts require a supply of
liquid petroleum gas to permit the supply of certain basic services .

[7] On 8 September 2017, the respondent published an advertisement calling for
bids for the:
‘Supply and delivery [of] liquid petroleum gas (LPG), and installation of related
connections to Ezemvelo KZN wildlife resorts for a period of five (5) years.’

[8] The advertisement specified that a compulsory clarification session would be
conducted by the respondent on 22 September 2017 at 11 h00 (the compulsory
briefing) . The advertisement declared that a failure to attend and sign the
compulsory briefing register (the attendance register) on that date would result in any
bid submitted by the defaulting party being disregarded by the respondent.

[9] There is a dispute as to how many bids were received by the respondent
pursuant to the publication of the advertisement . The appellant indicates that seven
were received while the respondent state s that sixteen were received. Nothing ,
however, turns on this as it is not in dispute that the tender w as ultimately awarded
to the appellant and that, as a consequence, the appellant and the respondent
concluded a service level agreement (the service agreement) .

[10] For several years thereafter t he appellant provided services to the respondent
in accordance with the service agreement . Unbeknown to the appellant, during
October 2019 , the respondent commenced an internal audit and forensic
investigation of the circumstances relating to the award of the tender to the appellant
and the conclusion of the service agreement (the internal audit) .

[11] On 6 February 2020 , and before the internal audit was completed and a report
filed (the internal audit report) , the respondent cancel led the service agreement . The
reason s advanced by the respondent in its letter of cancellation were that :
(a) gas cylinders were positioned by the appellant in inappropriate places;
(b) no training had been provided to the respondent’s staff in terms of regulation
17(3) of the Pressure Equipment Regulations , 2009 under the Occupational Health
5

and Safety Act 85 of 1993;3 and
(c) certain incidents had occurred at various resorts of the respondent that had
resulted in injuries to the respondent’s staff and damage to its infrastructure .

[12] The basis of the cancellation of the service agreement , thus, had nothing at all
to do with the awarding of the tender to the appellant but related to events that
occurred after the tender had already been awarded.

[13] The appellant denied that there was any basis for the cancellation of the
service agreement but, upon reflection, accepted the respondent’s action as
constituting an act of repudiation and decided to accept that repudiation.4 The
appellant then swiftly issued summons against the respondent out of this court o n 19
March 2020 ,5 in which action it claimed damages in the form of loss of profits arising
from the unexpired portion of t he duration of the service agreement . The respondent
delivered its plea to the appellant’s particulars of claim, but the action remains
unresolved at present , apparently because this self-review application must first be
determined.

[14] Uniform rule 37 requires a pre -trial conference to be held in action
proceedings . In order to comply therewith and to progress the action, the parties held
the prescribed conference on 16 August 2021 . At that conference, the respondent ’s
legal representatives mentioned for the first time that it intended to review the
granting of the tender to the appellant. Exactly a month later, on 16 September 2021,
the self -review application was launched.

The self -review application

3 Pressure Equipment Regulations, 2009, GN R734, GG 32395, 15 July 2009. Regulation 17(3) reads
as follows:
‘An authorised person or an approved inspection authority shall issue a certificate of conformity after
completion of a gas installation, modification, alteration or change of user or ownership in the form of
Annexure 1.’
4 Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 2001 (2) SA 284 (SCA); [2001] 1 All SA 581
(A) para 16; African Zaibatsu Corporation Ltd and another v Industrial Development Corporation of
South Africa Ltd [2024] ZAGPJHC 1012; [2024] 4 All SA 739 (GJ) para 85.
5 The relevant case number is 2283/2020P.
6

[15] The respondent’s application sought the relief that was ultimately granted by
Radebe J, and which is mentioned at the beginning of this judgment. Six grounds
were
identified in the respondent’s founding affidavit , namely :
(a) The appellant did not attend the compulsory briefing . Incorporated in this
ground were allegations that the respondent’s bid screening committee was aware of
this fact and allegedly unlawfully permitted the appellant’s bid to progress when it
ought to have disqualified it ;
(b) The respondent’s then acting supply chain manager, Mr Mnembe (Mr
Mnembe) , chaired the screening committee and was aware that the appellant had
not attended the compulsory briefing . Notwithstanding this knowledge, the screening
committee did not disqualify the appellant’s bid. Mr Mnembe was also part of the
respondent’s bid adjudication committee ;
(c) The respondent’s supply chain management division retained full control of
the service contract after the tender had been awarded to the appellant . This meant
that it , and not the end user, determined when service delivery would occur. It was
alleged that the tender had a fixed value of R21 766 500 ( a fact in dispute) and that
within two years, payment s of R17 097 482 had already been made to the appellant .
In administering the service agreement, Mr Mnembe allegedly authorised payments
for fictional transactions claimed by the appellant ;
(d) The appellant allegedly did not satisfy the functionality requirement of the
tender ;
(e) The appellant allegedly did not provide the required permits for the transport
of the liquid petroleum gas product s that it supplied; and
(f) After the aw ard of the tender was made, the respondent discovered that the
bid screening committee had never performed any assessment of the respondent’s
gas infrastructure, and the respondent accordingly had no objective way of knowing
whether the tender of any bidder, not just the appellant, was actually reasonable.

Basic principles of self -review
[16] It is not in dispute that t he respondent is a state -owned entity and, as such, it
may not review decisions taken by it in terms of the Promotion of Administrative
7

Justice Act 3 of 2000 (PAJA).6 It is confined to seeking a review of its own decisions
on the basis of a legality review.

[17] In Pharmaceutical Manufacturers Association of SA and another : In re Ex
Parte President of the Republic of South Africa and others ,7 the Constitutional Court
explained tha t the principle of legality is ‘an incident of the rule of law’ , which is a
founding value of the Constitution itself.8 What this means is that the principle of
legality ‘is one of the constitutional controls through which the exercise of public
power is regulated by the Constitution ’.9 It is so that t he exercise of public power can
only be regarded as being legitimate where it is lawful ly exercised , as contemplated
by the Constitution . Section 217 (1) of the Constitution accordingly provides that
when an organ of state , such as the respondent, contracts for the supply of goods or
services to it, ‘it must do so in accordance with a system which is fair, equitable,
transparent, competitive and cost -effective ’.

[18] Where a court determines that the conduct of an organ of state is inconsistent
with the Constitution:
‘… such a court is obliged to declare it invalid. It has no choice in the matter.’10
Mr de Wet SC, who appeared for the respondent in the court a quo and in this
appeal, repeatedly emphasised this point in his argument before us .

[19] The Constitutional Court in Buffalo City Metropolitan Municipality v Asla
Construction (Pty) Ltd (Asla (CC) )11 held that the duty to declare conduct invalid
arises when the unlawfulness is clear and based upon undisputed facts12 and stated
further that this principle should :

6 State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd [2017] ZACC 40; 2018
(2) SA 23 (CC); 2018 (2) BCLR 240 (CC).
7 Pharmaceutical Manufacturers Association of SA and another: In re Ex Parte President of the
Republic of South Africa and others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC)
para 17.
8 Ibid para 83.
9 Affordable Medicines Trust and others v Minister of Health and others [2005] ZACC 3; 2006 (3) SA
247 (CC); 2005 (6) BCLR 529 (CC) para 49.
10 Minister of International Relations and Co -operation and others v Simeka Group (Pty) Ltd and
others [2023] ZASCA 98; [2023] 3 All SA 323 (SCA) para 31.
11 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15 ; 2019 (4) SA
331 (CC); 2019 (6) BCLR 661 (CC) .
12 Ibid para 66.
8

‘… be interpreted narrowly and restrictively so that the valuable rationale behind the
rules on delay are not undermined .’13


The princip al issue s in the appeal
[20] While six grounds of review were identified in the respondent’s application
before the court a quo, there were two principal issue s in the appeal . The first is the
issue of hearsay evidence and the second is the issue of undue delay in the bringing
the self -review application and I now consider each of these grounds.

Hearsay
[21] The deponent to the respondent’s founding affidavit, Mr Ntsikelelo Dlulane (Mr
Dlulane), was the acting chief executive officer of the respondent at the time that he
deposed to the founding affidavit in the self -review application. At the
commencement of his affidavit, he stated that:
‘The contents of this affidavit does (sic) not fall within my personal knowledge. It is
based on documents referred to hereinafter and in particular an internal audit and
forensic investigation conducted by the applicant. The latter report was finalised on
15 March 2021. It is annexed hereto marked “A”. ’

[22] The same statement that the facts advanced are not within his knowledge is
again acknowledged by him in the first replying affidavit and is repeated in the
supplementary replying affidavit to which Mr Dlulane also deposed.14

[23] Thus, Mr Dlulane does not assert any direct knowledge of that which he sets
out to explain in any of the affidavits to which he deposed . That is problematic for the
respondent because Mr Dlulane is, in effect, acknowledging that the founding
affidavit , a most significant document, is based virtually entirely upon hearsay.15 That
proposition is compounded when the core of the founding affidavit, the internal audit
report relied upon by the respondent and referred to by Mr Dlulane in the extract

13 Ibid para 71.
14 The appellant delivered an answering affidavit and a supplementary answering affidavit to which
the respondent delivered a replying affidavit and a supplementary replying affidavit.
15 I do not lose sight of the fact that an affidavit of Mr Lawrence Mbonambi, accompanied the founding
affidavit and covered a discrete aspect of the entire bid process.
9

mentioned above, is considered. It is the work of persons other than Mr Dlulane and
was not initially confirmed under oath by any of those who compiled it.

[24] The appellant correctly took issue with this in its answering affidavit. It stated
that the founding affidavit was entirely based upon hearsay. Apparently
acknowledging this to be correct, two confirmatory affidavits deposed to by the
authors of the internal audit report were later delivered by the respondent along with
its first replying affidavit. Those confir matory affidavits were similar. Unsatisfactorily,
one of the confirmatory affidavits did not even provide the full names of the deponent
but merely provided the initial of his or her forenam e.16 Each confirmatory affidavit
was comprised of two widely spaced pages in which the deponent confirmed the
correctness of the internal audit report .

[25] This is a common approach in this division and is often adopted in motion
proceedings where witnesses who bear actual knowledge of certain facts do not give
that evidence personally but permit another, who has no direct knowledge of those
facts, to state them. A brief confirmatory affidavit is then filed, ostensibly to regularise
the hearsay nature of the evidence. The SCA has described this practice as being
‘slovenly ’17 and i n Drift Supersand (Pty) Limited v Mogale City Local Municipality and
another observed that the municipality had adopted a :
‘… sloppy method of adducing evidence by way of a hearsay allegation made by Mr
Mashitisho supported by a so -called “confirmatory affidavit” by Mr Van Wyk, who
stated no more than that he had read the affidavit of Mr Mashitisho and “confirmed
the contents thereof in so far as it relates to me and any of activities”. This might be
an acceptable way of placing non -contentious or formal evidence before court, but
where, as here, the evidence of a particular witness is crucial, a court is entitled to
expect the actual witness who can depose to the events in question to do so under
oath. Without doing so, a hearsay statement supported merely by a confirmatory
affidavit, in many instances, loses cogency.’
I agree with those sentiments.


16 The name provided was ‘K. Nkgabutle’.
17 Eskom Holdings SOC Limited v Masinda [2019] ZASCA 98 ; 2019 (5) SA 386 (SCA) at 387I to
388B.
10

[26] In addition, further allegations were thereafter made in the replying affidavit
about the internal audit to which the appellant was not given the opportunity to reply.
This is also not permitted.18

[27] All of t his is entirely unsatisfactory. Where contentious facts are involved or
where detailed explanations behind a significant set of facts are required , the person
having such personal knowledge of those facts must depose to them. The practice of
permitting uni nformed persons to state facts in respect of which they have no direct
or personal knowledge must cease.

[28] As regards making out a case in reply , as has been attempted in this matter,
legal proceedings have an order and a sequence to them that have been developed
over the centuries to permit all parties to be heard in a logical and procedurally fair
way. That sequence must be adhered to, save and except where there is a sound
basis for deviating from it. This does not stem from an overly technical approach to
pleading but concerns fundamental fairness .19 No basis has been advanced for such
deviation in this matter, other than an acknowledgement by the respondent in its
replying affidavit that it was guilty of an ‘oversight’ in not attaching the confirmatory
affidavits of the authors of the internal audit report to the founding affidavit.

[29] It is not entirely certain what the word ‘oversight’ is intended to mean in this
context. It may conceivably mean that the confirmatory affidavits existed but, through
an administrative error, did not accompany the founding affidavit when the
application was first delivered. Or it could mean that the necessity for confirmatory
affidavits had been entirely overlooked. It appears the latter meaning was the true
meaning intended, because both of the confirmatory affidavits were sworn to by their
respective deponents on 7 March 2022, while the founding affidavit was sworn to on
15 September 2021. The ‘oversight’ is thus not the failure to timeously deliver

18 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635H -636B; Bayat and Others v
Hansa and Others 1955 (3) SA 547 (N) at 553C -E; Esau and Others v Minister of Co -Operative
Governance and Traditional Affairs and Others [2021] ZASCA 9; [2021] 2 All SA 357 (SCA); 2021 (3)
SA 593 (SCA) para 60.
19 Esau and Others v Minister of Co -Operative Governance and Traditional Affairs and Others [2021]
ZASCA 9; [2021] 2 All SA 357 (SCA); 2021 (3) SA 593 (SCA) para 6 1.

11

already existing confirmatory affidavits, it is the failure to create them for they did not
exist at all when the founding affidavit was delivered.

[30] Given that Mr Dlulane admitted that he had no personal knowledge about that
to which he deposed, and the internal audit report upon which he relied was the work
of others, and not himself , it seems to me that no real case of any evidential value
was made out on the founding papers and the self -review application could
conceivably have been dismissed on that basis alone. However, the court a quo did
not address this issue in its judgment.

[31] The internal audit report is a substantial document being in excess of 150
pages. It is densely drafted and refers to a plethora of facts and findings. In my view,
the belated delivery of the two confirmatory affidavits did not rescue the respondent
from the appellant’s trenchant criticism of it using hearsay evidence.

[32] In answer to this, Mr de Wet referred us to Asla (CC) where in Theron J
observ ed that no condonation application was necessary in self -review applications
and that the court could simply consider all the relevant factors before deciding
whether to overlook the delay . I do not accept the argument proposed by Mr de Wet
that as long as there are confirmatory affidavits delivered at some stage, all is well.
As was previously stated, an applicant is required to make out its case in its founding
affidavit. It follows that Asla (CC) is thus not authority for the fact that an applicant
bringing a self -review application is not obliged to make out its case in its founding
affidavit.

[33] The appellant’s point which , as already mentioned, went unaddressed in the
court a quo’s judgment, was a good point. The respondent’s case was constructed
on hearsay, and it attempted to make its case in reply. The self -review application
was capable of being dismissed on this point alone and should, in my view , have
been so dismissed.

Delay
12

[34] The appellant focussed attention on the respondent’s alleged delay in bringing
its self -review application in paragraph s 9 and 10 of its answering affidavit, where it
stated the following :
‘9. Nearly four years have passed since the award of the tender, yet there is no
explanation for the delay of bringing the present application to review and set aside if
indeed the applicant believed it was reviewable.
10. I am advised that the current position in law is that a public body seeking to
review its own decision (even if there are grounds to do so, which there are not in the
present application) is duty bound to explain the delay in instituting any application
for review and, absent a proper explanation, the decision can be insulated from
being reviewed and set aside by virtue of the delay. ’

[35] The appellant thus pertinently and clearly initially raised the issue of delay . It
was, however, an obvious issue and t he respondent must have, independently of the
issue being raised by the appellant , appreciated that the time periods that had
elapsed in the matter needed to be addressed by it in presenting its application to
the court hearing its self-review application . Unsurprisingly, t his was the principal
issue in the appeal.

[36] The appellant alleges that the respondent failed to act upon known facts when
it should have acted and consequently delayed significantly and unacceptably . In the
face of this criticism, i t follows that the relevant events and the material time intervals
in this matter have assumed some significance. The material events and time
periods are the following:
(a) The tender was awarded to the appellant on 20 October 2017, and it was
cancelled by the respondent on 6 February 2020 , a span of 840 days;
(b) The internal audit was commissioned by the respondent on 6 October 2019
and was concluded on 15 March 2021, a span of 527 days;
(c) The appellant issued summons against the respondent on 19 March 2020 and
the Uniform rule 37 conference was held on 16 August 2021, a span of 516 days;
and
(d) The self -review application was launched on 16 September 2021, which is:
(i) 186 days after the internal audit was completed;
13

(ii) 589 days after cancellation of the service agreement occurred ; and
(iii) 1 428 days after the tender was awarded to the appellant.

[37] These are self -evidently lengthy periods. One would accordingly have
expected a comprehensive explanation for the delay to be contained in the founding
affidavit.

[38] There was, however, no such explanation in the founding affidavit. The issue
was simply not addressed at all . Notwithstanding the prohibition against making a
case in reply , there was no real attempt, bar a desultory one to which reference will
shortly be made, to explain the delay in either of the two replying affidavits that the
respondent delivered .

[39] But the point of delay had been taken by the appellant in its answering
affidavit and the court a quo must , therefore , have been aware of it. Yet the issue
was also not dealt with at all by the court a quo in its judgment. It was as if the point
had never been raised by the appellant. But it had.

[40] When a material point is taken in an answering affidavit, it must be considered
and fully addressed by the other party in its replying affidavit. A failure to do so may
result in the court regarding the allegation as having been admitted and that may
imperil the entire application , for in self-review applications an unexplained delay
may lead to the dismissal of the application . It need hardly be mentioned that where
raised, the issue of delay must be considered in the judgment that the court hearing
the application delivers and cannot simply be overlooked .

[41] The failure to address th e issue of delay at all by the court a quo in its
judgment appears to me to be a n unfortunate , but obvious , misdirection by it. The
issue was before the court and should have enjoyed the court’s consideration. The
facts raised by the appellant in this regard were succinctly presented in its answering
affidavit s. Those same facts are now before us as an appellate court. We have
enjoyed full argument from counsel for both sides on the issue and, i n my view, this
is an instance where this court is in as good a position as the court a quo to
14

determine the thus far unexplored issue of delay . Rather than refer the issue back to
the court a quo for it to be determined , this court , in my estimation , should determine
the issue ,20 as I now do.

[42] I commence by cautioning myself of two things :
(a) Firstly, in a legality review there are no prescribed time periods within which
such review must be commenced . This is in contrast with a review brought in terms
of PAJA , where time limits do apply.21 A legality review must simply be brought
without undue delay. In Merafong City v AngloGold Ashanti Ltd ,22 Cameron J
explain ed that:
‘The rule against delay in instituting review exists for good reason: to curb the
potential prejudice that would ensue if the lawfulness of the decision remains
uncertain. Protracted delays could give rise to calamitous effects. Not just for those
who rely upon the decision but also for the efficient functioning of the decision -
making body itself.’
Four years after Merafong was de cided , Ponnan JA reiterated in Altech Radio
Holdings (Pty) Ltd and others v Tshwane City ,23 that:
‘It is a long -standing rule that a legality review must be initiated without undue delay
and that courts have the power (as part of their inherent jurisdiction to regulate their
own proceedings) to either overlook the delay or refuse a review application in the
face of an undue delay.’
(b) Secondly, as already briefly mentioned earlier in this judgment, it is not
necessary in a legality review to explicitly apply for condonation in the event of the
application appearing to be out of time because , as was stated by Theron J in Asla
(CC) :
‘The second difference between PAJA and legality review for the purposes of delay
is that when assessing the delay under the principle of legality no explicit
condonation application is required. ’24

20 Motloi v SA Local Government Association [2005] ZALAC 12; [2006] 3 BLLR 264 (LAC); (2006) 27
ILJ 982 (LAC) para 16.
21 See s 7(1) of PAJA .
22 Merafong City v AngloGold Ashanti Ltd [2016] ZACC 35 ; 2017 (2) SA 211 (CC); 2017 (2) BCLR
182 (CC) para 73.
23 Altech Radio Holdings (Pty) Ltd and others v Tshwane City [2020] ZASCA 122; 2021 (3) SA 25
(SCA) para 18.
24 Asla (CC) para 51.
15


[43] The period of delay , and its consequences, are assessed in accordance with
the ubiquitous principle of reasonableness.25 In Asla (CC) , the court confirm ed that
the test to be applied when assessing whether there ha d been an undue delay is the
two step test initially postulated in Gqwetha v Transkei Development Corporation Ltd
and others ,26 and reaffirmed in Khumalo and another v MEC for Education, KwaZulu -
Natal,27 namely that:
‘Firstly, it must be determined whether the delay is unreasonable or undue. This is a
factual enquiry upon which a value judgment is made, having regard to the
circumstances of the matter. Secondly, if the delay is unreasonable, the question
becomes whether the court's discretion should nevertheless be exercised to overlook
the delay to entertain the application .’28

[44] It follows that where a delay is alleged to have occurred, there must be an
explanation advanced for its occurrence and the explanation proffered must cover
the whole period of the delay, for it would not be sufficient to only explain a portion of
the period of the delay.29 If there are sound reasons that explain the delay, then it
may potentially be justifi able and be capable of being overlooked by the reviewing
court. However, as Theron J found in Asla (CC) :
‘…where there is no explanation for the delay, the delay will necessarily be
unreasonable .’30

[45] Has there been a delay in this matter? The respondent denies that there has
been , for it seem s to assert that it acted with reasonable promptitude once it
received the internal audit report . Accepting for a moment that the respondent only
needed to act once the outcome of the internal audit was known to it, which is not
the case in my view, on that version there still appears to have been a n unexplained

25 Ibid.
26 Gqwetha v Transkei Development Corporation Ltd and others 2006 (2) SA 603 (SCA); [2006] 3 All
SA 245 (SCA).
27 Khumalo and another v MEC for Education, KwaZulu -Natal [2013] ZACC 49 ; 2014 (5) SA
579 (CC); 2014 (3) BCLR 333 (CC).
28 Asla (CC) para 48; see also State Information Technology Agency SOC Ltd v Gijima Holdings (Pty)
Ltd [2017] ZACC 40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC); Department of Transport and
others v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC); 2017 (1) BCLR 1 (CC).
29 Asla (CC) para 52.
30 Ibid; see also Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Ltd
[2021] ZASCA 90; 2022 (5) SA 416 (SCA); [2021] 3 All SA 791 (SCA) para 29.
16

delay of some 186 days , being the period between the finalisation of the internal
audit report and the launching of the self -review application.

[46] However, as was pointed out by Mr Wallis SC, who appears together with Mr
Tucker for the appellant, the delay may be much longer than that . He drew attention
to the previously mentioned a ffidavit deposed to by Mr Lawrence Mbonambi (Mr
Mbonambi) , a buyer employed by the respondent . This affidavit was delivered by the
respondent together with the founding affidavit to establish its princip al ground for
seeking the review of the award of the t ender , namely the alleged failure of the
appellant to attend the compulsory briefing and to sign the attendance register. In
this regard, Mr Mbonambi states in his affidavit that:
‘5. On the bid in question I followed the normal procedure as stated above and in
my initial statement. Upon screening the bid documents I learnt that one of the
bidder s did not appear on the Compulsory Briefing Session attendance register but
their bid document was stamped, namely Nombela Investment CC.’

[47] The point now relied upon by the respondent in opposing this appeal , namely
that the appellant did not attend the co mpulsory briefing and did not sign the
attendance register, was, on the strength of Mr Mbonam bi’s affidavit , thus known to it
immediately after the bid period closed. In Asla (CC) it was stated that:
‘…the proverbial clock starts running from the date that the applicant became aware
or reasonably ought to have become aware of the action taken ’.31

[48] From the affidavit of Mr Mbonambi, it is apparent , at the very least , that he
was fully aware of the alleg ed non-attendance by the appellant’s representatives and
the non-signature of the attendance register immediately after the bid period ended .

[49] Can it be said that the respondent itself lacked the knowledge that Mr
Mbonambi personally possessed? The answer to that question is in the negative. Mr
Mbonambi was a functionary of the respondent tasked, on his own version , with
screening the submitted bids. He was, thus, part of the bid assessment process . In

31 Asla (CC) para 49.
17

Cape Town City v Aurecon SA (Pty) Ltd,32 the Constitutional Court was faced with a
similar argument and concluded thus:
‘The distinction that the City attempts to draw between what is within its own
knowledge and what is within the knowledge of its committees is superficial. It is
common cause that the BEC and the BAC are committees mandated by the City for
purposes of the tender -procurement process. These committees form part of an
internal arrangement by the City. Accordingly, it may reasonably be expected that all
information regarding the tender process which is within the knowledge of the BAC
or BEC may be deemed to be within the City's knowledge. In my view that is a weak
attempt by the City to deny knowledge of what it ought reasonably to have known .’

[50] It appears to me, therefore, that the point raised by Mr Wallis is well taken and
that the delay is much longer than the unexplained period of 186 days between the
finalisation of the internal audit and the bringing of the self -review application. It is in
the region of 1 4 00 days , which is an exceptionally lengthy period of time .

[51] On the face of it, it therefore appears that there has been a delay . Significant
periods of time passed before the respondent moved to bring its self -review
application. The explanation for the delay , therefore , of necessity, would ordinarily
move to the foreground and assume importance . However, as previously mentioned,
the founding affidavit contained no explanation at all for the delay. Viewed charitably,
there is the briefest of allusions to a statement that may be considered as being an
attempt to explain the delay in the respondent’s first replying affidavit . Mr Dlulane,
having again disclosed that the facts that he mentions are not within his personal
knowledge , states that the respondent received certain unsubstantiated allegations
from undisclosed sources concerning the award of the tender to the appellant and
instituted the internal audit on 6 October 2019 and the:
‘… forensic investigation subsequently commenced its work and was completed on
15 March 2021 when the report marked annexure “A” became available. The
applicant required time to digest the report whereafter this application followed.’


32 Cape Town City v Aurecon SA (Pty) Ltd [2017] ZACC 5 ; 2017 (4) SA 223 (CC); 2017 (6) BCLR
730 (CC) ( Aurecon ) para 39.
18

[52] That is the sum total of the respondent’s explanation for the delay. With that
flimsy offering, 1 428 days are brushed aside. The explanation, such as it is, is
entirely unsatisfactory and offers no insight into the basis of the respondent’s torpor.
Why the internal audit itself took approximately two years to be finalised is simply not
addressed.

[53] It is conceivable that the respondent chooses to act at a snail’s pace, and this
is how it always conducts itself . However, in Minister of International Relations and
Co-operation and others v Simeka Group (Pty) Ltd and others ,33 the court made the
following observations when considering the conduct of a State Department:
‘Whilst one must accept that the Department could have acted with more urgency
than it did in unravelling the facts, given that it sought to review its own decision,
sight should nevertheless not be lost of the fact that the bureaucratic machinery is
notorious for moving slowly even though the exigencies of a particular case might
require that matters be dealt with expeditiously. However, it must be emphasised
that recognising this reality in no way seeks to excuse laxity. It is more to say that,
notwithstanding the constitutional dictates of a responsive and accountable public
administration, the reality is that public administration in our country has over time
been allowed to slide to a quagmire of inefficiency. This is a state of affairs that is
antithetical to the values underpinning our constitutional orde r that the citizenry holds
dear.’
Sluggish conduct is therefore intolerable and is not to be accepted. Where it occurs,
it must be explained.

[54] A consideration of all the affidavits delivered by the respondent reveals that no
explanation of any merit is offered for any of the delays previously identified in this
judgment. There are simply no facts advanced in the founding affidavit that explain
why it has taken the respondent so long to seek a judicial imprimatur for its
conclusion that the tender was unlawfully awarded to the appellant.

[55] It appears to be suggested that t he respondent could not have acted before it
received the internal audit report . However, t he impugned decision was the

33 Minister of International Relations and Co -operation and others v Simeka Group (Pty) Ltd and
others [2023] ZASCA 98; [2023] 3 All SA 323 (SCA) para 85.
19

respondent ’s own decision, and it was taken for reasons of which it must have been
aware. It follows that the reason for taking the impugned decision was thus always
within its own knowledge , as admitted by Mr Mbonambi, and the respondent did not
require the internal audit report to cause it to act.

[56] A similar argument was advanced in the SCA in Asla Construction (Pty) Ltd v
Buffalo City Metropolitan Municipality34 (before the matter progressed to the
Constitutional Court). In referring to this matter, I am mindful of the fact that it dealt
with a review brought in terms of PAJA, but I can see no reason why the logic of the
judgment should not also apply to legality reviews.35 In Asla (SCA) , Swain JA stated
as follows:
‘The contention of the respondent that the time period only commenced running
once it became aware of the unlawful administrative action is untenable. The issue of
whether knowledge of the reviewable irregularities in the decision sought to be
reviewed was required before this period commenced running, was decided by this
court in Aurecon South Africa (Pty) Ltd v Cape Town City 2016 (2) SA 199
(SCA) ([2015] ZASCA 209) para 16, in the following terms:
“The decision challenged by the City and the reasons therefor were its own
and were always within its knowledge. Section 7(1) unambiguously refers to
the date on which the reasons for administrative action became known or
ought reasonably to have become known to the party seeking its judicial
review. The plain wording of these provisions simply does not support the
meaning ascribed to them by the court a quo, i.e., that the application must be
launched within 180 days after the party seeking review became aware that
the administrative action in issue was tainted by irregularity. That
interpretation would automatically entitle every aggrieved applicant to an
unqualified right to institute judicial review only upon gaining knowledge that a
decision (and its underlying reasons), of which he or she had been aware all
along, was tainted by irregularity, whenever that might be. This result is
untenable as it disregards the potential prejudice to the respondent (the

34 Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality [2017] ZASCA 23; 2017 (6) SA
360 (SCA); [2017] 2 All SA 677 (SCA) ( Asla (SCA )) para 7.
35 See the obiter dictum by Theron J in Asla (CC) fn 36.
20

appellant here) and the public interest in the finality of administrative decisions
and the exercise of administrative functions.” ’36

[57] Given the already mentioned view of Theron J in Asla (CC) ,37 with which I
respectfully agree , that a failure to provide an explanation would render a de lay
unreasonable, it follows that in the absence of any explanation by the respondent for
its delay, such delay must therefore be construed as being unreasonable.

[58] That, however, does not terminate the inquiry but instead results in the
consideration of the second leg of the inquiry , namely whether the unreasonable
delay should , nonetheless , still be overlooked by this court , for it has a discretion to
do so . But for that discretion to be exercised, there must be a basis for it. Ordinarily,
the basis for the exercise of that discretion would be found in the known facts and
the explanation advanced by the party alleged to be responsible for the delay.38 As
already made clear in this judgment, there are no facts or explanation s advanced by
the respondent. Even the sprawl of time between the commissioning of the internal
audit and its finalisation, a period of some 527 days, remains un explained.

[59] In considering whether a reviewing court’s discretion should be exercised in
favour of the self -reviewing party, a flexible approach should be adopted that
requires the evaluation of a number of factors:
(a) The potential prejudice to affected parties as well as the possible
consequences of setting aside the impugned decision are obvious considerations .
The potential prejudice to affected parties and the consequences of declaring
conduct unlawful may , however, in certain circumstances , be made more palatable
by the court’s power to grant a just and equitable remedy that is fair to all the
parties .39
(b) The nature of the impugned decision must also be taken into consideration .
This involves ‘a consideration of the merits of the legal challenge against that

36 Asla (SCA) para 7. Aurecon South Africa (Pty) Ltd v Cape Town City [2015] ZASCA 209; 2016 (2)
SA 199 (SCA); [2016] 1 All SA 313 (SCA) para 16 was approved by the Constitutional Court in
Aurecon paras 40 -44.
37 Asla (CC) para 52.
38 Ibid para 53.
39 Ibid para 54.
21

decision ’.40 In South African National Roads Agency Ltd v Cape Town City,41 Navsa
JA stated that the merits of the impugned decision are a critical factor in determining
whether it is in the interests of justice to condone any delay found to exist . Such an
inquiry would require an assessment ‘of whether the non -compliance with statutory
prescripts was egregious .’42
(c) The conduct of the party seeking the self -review is also a relevant consideration
because , as was stated by Cameron J in MEC for Health, Eastern Cape and another
v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute :43
‘[T]here is a higher duty on the state to respect the law, to fulfil procedural
requirements and to tread respectfully when dealing with rights. Government is not
an indigent or bewildered litigant, adrift on a sea of litigious uncertainty, to whom the
courts must extend a procedure -circumventing lifeline. It is the Constitution’s primary
agent. It must do right, and it must do it properly.’ (Footnote omitted.)
I turn to consider each of these issues.

[60] The first point to be made is that the factual cancellation of the service
agreement was not occasioned because of any perceived irregularity arising out of
the award of the tender. As previously explained, there were other grounds,
unrelated to the issues in this appeal, that caused the respondent to can cel the
service agreement.

[61] A second point to consider is that up to the date of cancellation of the service
agreement, all amounts due by the respondent to the appellant ha d been paid. As
indicated by Mr de Wet, t his is therefore not an instance where the respondent is
seeking to avoid making payments to the appellant in respect of services already
rendered , which , in itself , may occasion considerable prejudice to the party awaiting
payment. The act of cancellation has severed the ongoing obligations between the
parties . That having been accept ed, it is equally so that this is not a situation where

40 Ibid para 55.
41 South African National Roads Agency Ltd v Cape Town City [2016] ZASCA 122; 2017 (1) SA 468
(SCA); [2016] 4 All SA 332 (SCA) .
42 Ibid para 81.
43 MEC for Health, Eastern Cape and another v Kirland Investments (Pty) Ltd t/a Eye & Lazer
Institute [2014] ZACC 6; 2014 (3) SA 481 (CC); 2014 (5) BCLR 547 (CC) para 82.
22

the respondent alleges that it has paid for something that it never received. The
issue of prejudice is accordingly a non sequitur.

[62] But what is reasonably evident from the facts is a desire by the respondent to
avoid the consequences of the appellant ’s action wherein it claims the loss of future
profits for the balance of the contract period arising out of the cancellation by it of the
service agreement . An order in the terms granted by Radebe J would torpedo the
appellant’s action, which has already reached an advanced stage . That would seem
to me to be prejudicial to the appellant and entirely beneficial to the respondent .

[63] Given the substantial delay in this matter and the tepid grounds advanced for
it, it is difficult to escape the conclusion that the bringing of the review application is a
deliberate attempt by the respondent to extricate itself from any consequences
arising out of the appellant’s pending action. In other words, it is a stratage m invoked
to limit its liability and is not a true review of a repugnantly unlawful transaction. In
Transnet SOC Ltd v Tipp -Con (Pty) Ltd and others ,44 the court described the self-
review application brought by Trans net in that matter as being ‘cynical ’. That
description is not out of place in this matter.

[64] That brings me to the second issue, namely the nature of the decision and the
degree to which there has been noncompliance with statutory precepts. When it is
stripped to its basic element, the true point taken by the respondent is that the
appellant’s representative s did not sign the attendance register. Mr de Wet submitted
in argument that the respondent could not know who attended the compulsory
briefing and the only way it could know would be to peruse the attendance register.
That can only mean that the respondent cannot state with any confidence who
actually attended the compulsory briefing: it can only assume who attended by
consider ing the attendance register.

[65] The bid conditions crafted and published by the respondent are before this
court. They appear to be at odds with the terms of the advertisement that was
published by the respondent. The advertisement stated, as previously mentioned,

44 Transnet SOC Ltd v Tipp -Con (Pty) Ltd and others [2024] ZASCA 12 para 57.
23

that failure to attend the compulsory briefing and failure to sign the attendance
register would result in a bid being disregarded. The bid conditions, a far more
substantial document than the advertisement, state the following :
‘Compulsory meeting (if applicable)
Confirmation of attendance of compulsory inspection will be recorded on site. Non -
attendance of compulsory site inspection/information/clarification meeting will
invalidate your b id. Late entries will not be allowed. B idder must be represented at
the meeting by a person who is suitably qualified and experienced to comprehend
the implications of the work. ’

[66] The difference between the advertisement and the bid conditions is that the
latter does not define how attendance should be recorded while the former requires
a signature in the attendance register . The bid conditions are less specific and could,
accordingly, be met , for example, by the respondent’s employee s themselves
recording who attended the compulsory briefing . In other words, the bid conditions
provide that attendance could be established without a signature.

[67] The appellant states that its representative s were in attendance and did sign
the register but cannot explain why th eir signature s do not appear on the version of
the attendance register put up by the respondent. That is passing strange. The
appellant also states , however , that there were other ways of establishing that it did
attend the compulsory briefing . It states that it was required by the respondent to
sign two further registers, namely a register to ent er the respondent’s office park and
a further register to enter the foyer of the respondent’s building . Both of these
registers are in the possession of the respondent . This was stated by the appellant in
its answering affidavit. The respondent acknowledged that this was correct in its
replying affidavit but made no attempt to put up these further registers in reply. That
the appellant ’s representatives knew of these additional registers t ends to suggest
that they were, indeed, present at the compulsory briefing , as does the fact that the
appellant has challenged the respondent to produce the additional registers. The
respondent did not react to the challenge other than to acknowledge the existence of
the additional registers.

24

[68] The failure by the respondent to disclose whether these registers had been
signed by the appellant’s representative s is to be deprecated . It further invites the
conclusion that they were not put up because they would white -ant the only real
point of substance raised by the respondent in seeking the self-review , for the other
points taken by the respondent largely relate to events post the awarding of the
tender to the appellant and relate primarily to the conduct of its own employees in
administering the service agreement , or were not argued before us .45 Reference to
the other registers would not, in my view, offend the provisions of the bid conditions,
which merely required the recording of attendance. The additional registers would do
just that.

[69] The pu rpose of requiring attendance at the briefing was to ensure that all
potential bidders fully understood what was required of them. That much is plain
from the wording of the bid condition s referred to above. The point was not to simply
acquire a disparate collection of signature s in a register. While it is so that the party
issuing a tender is entitled to stipulate the peremptory components of a valid tender
bid,46 form cannot be elevated above substance. The respondent cannot dispute that
the appellant’s representative s were present at the compulsory briefing. The best
proof of attendance would undoubtedly be demonstrated by signature s in the
attendance register , as the respondent contends . The respondent infers that the
appellant did not have representative s at the briefing because no signature s appear
in the attendance register but it has not put up an affidavit of any of its employees
that disputes th e appellant’s assertion that its representatives were there . Mr Dlulane
was not at the compulsory briefing and cannot add any weight to the respondent’s
argument.

[70] At first blush, it would appear that there is an intractable dispute of fact . In
truth there is not. It is a fact that the appellant’s representatives’ signatures are not in
the attendance register. Of that there can be no dispute. There is simply an

45 In this regard, the responsible official employed by the respondent, Mr Mnembe, was disciplined for
his conduct in relation to the tender and was dismissed from the respondent’s employment.
46 Dr JS Moroka Municipality and others v Betram (Pty) Ltd and another [2013] ZASCA 186; [2014] 1
All SA 545 (SCA) para 10.
25

assumption by the respondent that this means the appellant’s representatives were
not there. An assumption is not a fact.

[71] While the appellant has catered for a possible referral to oral evidence o f this
issue by way of a conditional proposed draft order, Mr Wallis , in argument ,
suggested a far more elegant , and simpler , resolution of the issue, namely the
application of the well-known principle formulated in Plascon -Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd ,47 that where factual disputes arise in application
proceedings , the application must be decided on the respondent's version . In this
instance, the appellant was the respondent in the court a quo and thus the matter
falls to be decided on its version.48 I agree with Mr Wallis that this approach should
have been adopted by the court a quo. Had that approach been applied in the court
a quo, the self -review application would inevitably have failed.

[72] As regards its own conduct, the respondent ’s lethargy cannot be condoned.
Had it truly believed that it had acted unconstitutionally in awarding the tender to the
appellant, it would undoubtedly have acted with appropriate vigour and alacrity in
placing the matter before the court. It did no such thing. Instead, it cancelled that
which it now wants declared void and appears to have brought this application to
evade the consequences of the act of cancellation.

Conclusion
[73] In Department of Transport and others v Tasima (Pty) Ltd ,49 the Constitutional
Court reaffirmed the principle that undue delay should not be tolerated because :
‘Delay can prejudice the respondent, weaken the ability of a court to consider the
merits of a review, and undermine the public interest in bringing certainty and finality
to administrative action . A court should therefore exhibit vigilance, consideration and
propriety before overlooking a late review, reactive or otherwise. ’ (Footnote omitted.)


47 Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
48 Microsure (Pty) Ltd and others v Net 1 Applied Technologies South Africa Ltd 2010 (2) SA 59 (N)
para 4.
49 Department of Transport and others v Tasima (Pty) Ltd [2016] ZACC 39 ; 2017 (2) SA
622 (CC); 2017 (1) BCLR 1 (CC) para 160.
26

[74] In Altech Radio Holdings (Pty) Ltd and others v Tshwane City,50 Ponnan JA
remarked as follows :
‘Search hard enough in public procurement cases such as this, and one will surely
find compliance failures along the way. There will seldom be a public procurement
process entirely without flaw. But, perfection is not demanded and not every flaw is
fatal. Nor does every flaw in a tender process amount to an irregularity, much less a
material irregularity. Public contracts do not fall to be invalidated for immaterial or
inconsequential irregularities. Indeed, as it has been put, “(n)ot every slip in the
administration of tenders is necessarily to be visited with judicial sanction”.’

[75] In this matter, t here has been a delay in excess of 1 400 days. No explanation
has been provided for this. The failure to sign the attendance register is not in my
view particularly egregious, particularly when the respondent has in its possession
other registers which could establish the presence of the appellant’s representatives
at the compulsory briefing but has consciously chosen not to disclose what is in
those additional registers. The challenge of the respondent to its own decision is
uninspiring and inadequate . In my view, no case has been made out for th is court to
exercise its discretion to overlook the delay, and the appeal should therefore
succeed.

Costs
[76] The matter was not initially particularly complex but became more complex by
virtue of the steps that had to be taken as a consequence of the order of the court a
quo. It clearly is of importance to both parties, who both saw it fit to instruct senior
counsel to represent them. Bearing this in mind , the employment of two counsel
(where that occurred ) was justified .

[77] In a proposed draft order presented to this court after argument had occurred,
the appellant suggested that in the event of it being successful on appeal, it be
awarded the costs in the court a quo to be taxed on scale C. That is an invi tation that
must be declined because the amendment to Uniform rules 67A and 69 , being the
applicable Uniform rules, came into effect on 12 April 2024 and the proceedings in

50 Altech Radio Holdings (Pty) Ltd and others v Tshwane City [2020] ZASCA 122; 2021 (3) SA
25 (SCA) para 54 .
27

the court a quo were finalised on 2 December 2022 , the leave to appeal before
Radebe J was finalised on 12 July 2023 and the application for leave to appeal to
the Supreme Court of Appeal was finalised on 6 October 2023 , all of those dates
falling before the amendment took effect . The appeal before us, obviously, occurred
after the effective date of the amendment and this will be reflected in the order
granted.

The order
[78] I would accordingly propose the following order:
1. The appeal is allowed, and the order granted by Radebe J on 2 December
2022 is set aside and replaced with the following order:
‘The application is dismissed with costs.’
2. The respondent shall pay the appellant’s costs, including the costs
consequent upon the employment of two counsel (where so employed):
(a) In the application for leave to appeal before Radebe J on 12 July 2023;
(b) In the application for leave to appeal to the Supreme Court of Appeal; and
(c) In the appeal before the full court , with the costs on appeal before the full
court to be taxed on scale C .



MOSSOP J


I agree:



POYO DLWATI JP



I agree:
28





SIBISI AJ

29

APPEARANCES




Counsel for the appellant : Mr P J Wallis SC and Mr M C Tucker

Instructed by: Norton Rose Fulbright South Africa
Incorporated
3 Pencarrow Crescent
Pencarrow Park
La Lucia Ridge
Durban

Locally represented by:
Govindasamy Ndzingi and Govender
211 Burger Street
Pietermaritzburg

Counsel for the respondent: Mr A De Wet SC

Instructed by: Austin Smith Attorneys
1 Highgate Drive
1 George MacFarlane Lane
Wembley
Pietermaritzburg