Moipone Fleet (Pty)Ltd First Respondent
Absa Vehicle Management Solutions Second Respondent
This judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives by email.
The judgment is further uploaded to the electronic file of this matter on
CaseLines by the Judge or her Secretary. The date of this judgment is
deemed to be 23 May 2025.
JUDGMENT
COLLIS J
INTRODUCTION:
1] The applicant before Court has applied for leave to appeal the whole of
the judgment and order of this Court handed down on 21 May 2024.
2] In anticipation of this application this Court requested the parties to file
short heads of arguments.
3] In the matter before this Court, t he applicant ’s action was dismissed on
the grounds of unreasonable delay and its failure to present evidence in
respect of the awarding of the tender . This Court in exercising its judicial
discretion concluded that the delay should not be condoned.
4] The applicant has raised several grounds of appeal. On behalf of the
applicant, it was submitted that on the grounds upon which it relies, it has
satisfied the requirements to be granted leave to appeal as set out in section
17(1) of the Superior Courts Act 10 of 2013 in that there is a reasonable
prospect that an appeal would succeed.
5] In Ramakatsa, the Court said that the prospects of success must not be
remote and that “there must exist a reasonable chance of succeeding .”1 The
applicant submits that it has satisfied this requirement.
6] The Superior Courts Act 10 of 2013, and more particularly Section 17(1)
thereof, provides:
1 Ramakatsa v African National Congress [2021] ZASCA 31 of 31 March 2021.
Leave to appeal may only be given where the judge or judges
concerned are of the opinion that - (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.
7] This Court in finding that the applicant had unreasonably delayed the
instituting of this review application , made a finding of fact and accordingly
if the applicant is to succeed in this application for leave to appeal, it must
show either that there is a reasonable possibility that another Court may
conclude, on the facts, that the delay of the applicant was not unreasonable
or that there is a reasonable possibility that another Court may conclude that
this Court misdirected itself in declining to condone the unreasonable delay
by the applicant.
8] In its judgment , the Court in several paragraphs dealt with why it had
concluded that the delay was found to be excessive, unreasonable and not
satisfactor ily explained .2
2 Judgment para 127 to 168.
9] The delay of several years between the applicant ’s knowledge of its
alleged grounds of review and its launch of the review application was plainly
unreasonable. None of the witnesses of the applicant had any personal
knowledge of the facts relating to these delays,3 and the applicant further
elected not to subpoena any of the former officials who possess ed such
personal knowledge.4 Accordingly the unreasonable delays were left wholly
unexplained.
10] The Court in refusing to condone the unreasonable delay, had pointed
out in its judgment that :
10.1 The issue of prejudice is an important consideration when deciding
whether or not to condone an unreasonable delay. 5
3 Judgment at para 194.
4 Judgment at para 205.
5 Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13
(A) at 39E - 41D. Yuen v Minister of Home Affairs 1998 (1) SA 958 (C) at 968H -J;
Radebe v Government of the Republic of South Africa and Others 1995 (3) SA 787
(N) at 802H -803D. Schoultz v Voorsitter, Personeel -Advieskomitee van die
Munisipale Raad van George 1983. Judgment at para 170 .
10.2 The delay rule promotes the rule of law by ensuring certainty and
finality and protecting parties from suffering prejudice in their reliance on
administrative decisions.6
10.3 In deciding whether to condone an unreasonable delay, the Courts
expect from organs of state a higher duty of complying with legal
requirements for review proceedings.7
10.4 The applicant has failed dismally to explain its unreasonable delay in
launching the review application ,8 which unreasonable delay is compounded
by:
10.4.1 delaying unreasonably in its prosecution of the review
application, with the result that, by the time that the review application
served before this Court, the PPP Agreement had, to all intents and
purposes, already run its course;9
6 Oudekraal Estates (Pty) Ltd v City of Cape Town and others 2004 (6) SA 222
(SCA) at para 37; Judgment at paras 176 -7.
7 Altech Radio Holdings (Pty) Ltd v Tshwane City 2021 (3) SA 25 (SCA) at para 71;
Judgment at para 179. See also Transnet SOC Ltd v Tipp -Con (Pty) Ltd and Others
2024 JDR 0301 (SCA) at paras 53 to 57 .
8 See previous section.
9 Colvic Marketing and Engineering (Pty) Ltd v Minister of Public Works and
Infrastructure and others (21819/2020) [2022] ZAGPPHC 375 (9 June 2022) paras
20 – 24 and 28; Judgment at paras 133 -4 and 185; see also Tipp -Con, par 39 @
page 14.
10.4.2 advancing spurious arguments about the departure of the
applicant’s officials when the Supreme Court of Appeal had already
rejected these arguments when they were previously advanced by the
applicant . 10
10.4.3 The applicant has behaved unacceptably by continuing to use
the vehicles supplied by Moipone and to receive the benefit of the PPP
contract, whilst, since 2021, it refused to pay Moipone for these
vehicles.11
10.4.4 The delay of the applicant has caused prejudice running into
hundreds of millions of rands to Moipone and the second respondent.12
10.4.5 the applicant does not have a reasonable explanation that
covers the entire period of the delay. The decision to award the tender
to Moipone as the preferred bidder was taken in 2014, almost three
10 Altech Radio Holdings (Pty) Ltd and Others v Tshwane City 2021 (3) SA 25 (SCA)
at para 23; Judgment at para 130.8.
11 Judgment at para 203, see also Tipp -Con.
12 Judgment at paras 138 – 140 and 203 -4.
GAUTENG DIVISION, PRETORIA
APPEAR ANCES
Counsel for the Applicant: Adv. K. Tsatsawane SC
Adv. K. Magano
Adv. C. Marule
Instructing Attorney: MB Mabunda Inc.
Counsel for the First Respondent : Adv. M. Chaskalson SC
Adv. M. Qofa
Instructing Attorney: Cuzen Randree Dyasi Inc.
C/O: VZLR Attorneys
Counsel for the Second Respondent: Adv. W. Lüderitz SC
Adv. M. Musandiwa
Instructing Attorney: Webber Wentzel Attorneys (C/O Hills Inc.)
Date of Hearing:17 March 2025
Date of Judgment :23 May 2025