THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 338/2024 & 384/2024
In the matter between:
THE MEC FOR HEALTH:
GAUTENG PROVINCE FIRST APPELLANT
HEAD OF DEPARTMENT OF HEALTH
FOR THE GAUTENG PROVINCE SECOND APPELLANT
CHAIRPERSON OF THE BID
ADJUDICATION COMMITTEE THIRD APPELLANT
CHAIRPERSON OF THE BID
EVALUATION COMMITTEE FOURTH APPELLANT
TSHENOLO WASTE (PTY) LTD FIFTH APPELLANT
and
BUHLE WASTE (PTY) LTD RESPONDENT
Neutral citation: The MEC for Health: Gauteng Province and Others v Buhle
Waste (P ty) Ltd (338/2024 & 384/2024 ) [2025] ZASCA 102
(15 July 2025)
Coram: MBATHA and BAARTMAN JJA and STEYN, TOLMAY
and VALLY AJJA
Heard: 21 May 2025
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Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the
judgment is deemed to be 11h00 on 15 July 2025.
Summary: Administrative Law – provisions of the Promotion of Administrative
Justice Act 3 of 2000 – interdict and in alternative declarator sought under Part A
– Part B review application not before court – tender reviewed and set aside in
Part A – review most appropriate p rocedure for setting aside administrative
action .
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ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg (Cajee AJ
sitting as court of first instance)
1 The appeal is upheld with costs including the cost s of two counsel where so
employed.
2 The order of the high court is set aside and replaced with the following:
‘The application is dismissed with costs such to include the costs of two
counsel where so employed.’
JUDGMENT
Baartman JA (Mbatha JA and Steyn , Tolmay and Vally AJJA concurring) :
Introduction
[1] On 30 November 20 23, the Gauteng Division of the High Court,
Johannesburg, Cajee AJ (the high court) seized with an initial urgent application
in terms of Part A ,1 pending a review in Part B, declared that tender number
GT/GDH/060/2022 (the tender)2 had lapsed on 17 November 2022. It is in issue
whether the high court impermissibly set aside administrative action in an
application for a declarator and gave equitable relief not applied for. Further
1 ‘ . . . Interdicting and suspending the first respondent, the Department of Health, from taking any further steps
in respect of the tender of the “Appointment of Service Providers to Render Comprehensive Healthcare Waste
Management for the Department of Health Ins titutions for a Period of Thirty -Six Months with the Request for
Proposal (RFP) . . . pending the review application to be heard in Part B of these proceeding s….
3. In the alternative to prayer 2, above, and conditionally, declaring that the tender . . .has lapsed or been
cancelled whether by effluxion of time or no compliant tenderer being identified by the Department to potentially
award the tender or because no valid extension of the tender has occurred, and accordingly that the tender and
RFP is of no force and effect . . . .’
2 For the ‘appointment of Service Providers to render Comprehensive Waste Management for the Department of
Health Institutions for a period of thirty -six months’ (the tender) with Request for proposal number
GT/GDH/060/2022’ .
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whether the application should have proceeded in terms of the provisions of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) . The appeal is with
leave of the high court.
[2] On 15 July 2022 , the first appellant, the MEC for Health : Gauteng Province
(the MEC ), advertised an invitation to interested parties to tender for the removal
of medical waste. The closing date for lodging tenders was 19 August 2022. All
bids had to be valid for 90 days . It follows that the bid validity period would
expire on 1 7 November 2022. The respondent, Buhle Waste (Pty) Ltd ( Buhle
Waste ), was among 15 bidders who responded to the invitation . On 1 7 November
2022, the last day of the tender ’s validity, the MEC requested an extension of the
bid validity period until 15 February 2023 . However, that email was only sent on
18 November 2022. This is apparent from an email dated 1 8 November 2022 ,
signed by the chief financial officer on 17 November 2022 , from which the
following appear:
‘Dear sir/Madam
1. A possibility exists that the tender of which particulars…may not be disposed of before the
expiry of the current validity period, and I shall be glad to learn whether you are willing to hold
your tender validity IN ALL RESPECT for the further period in dicated. To facilitate the matter,
the reply hereunder may be completed and returned.
2. Should you not be willing to hold your tender valid for the further period, it will of course
lapse on expiry of the current validity period and will therefore be ignored if the tender is not
adjudicated within the period . . . .’
[3] On 18 November 2022, Buhle Waste , per return email, consented to the
request. The MEC in its answering affidavit merely noted the above allegations
and alleged the following in respect of the extension:
‘The submission of the bid was open until 19 August 2022. Before the closing date, 15 bids
were received. The tender was valid for 90 days from 20 August 2022 to 17 November 2022.
A valid extension was requested for 90 days on or about 16 November 2022 to 15 February
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2023. Another valid extension was further requested for 120 days from 16 February 2023 to
15 June 2023, and the third valid extension was also requested for a period of month to month
but not exceeding 90 days from 16 June 2023 to 13 September 2023. A furt her valid extension
was requested from 14 September 2023 to 27 September 2023 and all the parties consented.’
[4] At the time of request of the above extensions, Buhle Waste was the
incumbent and continued to render services to the relevant medical facilities. It
continued to do so while the appointment of a new service provider in terms of
the tender was pending. The urgent application was launched by Buhle Waste on
9 October 2023 and at that stage , it was in the dark as to whether the tender had
been awarded or not ; hence it sought interdictory relief in Part A pending review
proceedings in Part B.
[5] However, prior to the hearing of the application before the high court it
came to the attention of Buhle Waste that the tender had been awarded to the fifth
appellant, Tshenolo Waste (Pty) Ltd (Tshenolo ) and one other company . In
correspondence, dated 24 October 2023, Tshenolo ’s attorney enquired from
Buhle Waste ’s attorneys as follows: ‘In paragraph 3 of Part A of your client’s
Notice of Motion, your client seeks final relief in the alternative to the relief
sought in paragraph 2 thereof. Please confirm that this alternative relief, which is
not interdictory relief, is no longer persisted w ith. If this relief is persisted with,
our [c]lient would be entitled to the record of the decision relevant to that relief
if it is capable of being separated from the remainder of the record of the decision
sought to be reviewed and set aside’ . Buhle Waste did not reply to the
correspondence ; instead , it proceeded with the relief sought.
[6] At the hearing, the high court proposed that the parties deal with the
17 November 2022 extension upfront as the court indicated that that issue would
be dispositive of the entire matter. For it s authority , the high court relied on City
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of Ekurhuleni Metropolitan Municipality v Takubiza Trading & Projects CC and
Others3 where this Court held that once the tender validity ha d expired , there was
nothing to extend. The MEC and other opposing parties were opposed to the
proposed cause of action. Hence only the relief sought in Part A was fully argued .
The high court did not deal with the interdictory relief but limited itself to the
declaratory relief sought in the alternative .
[7] The high court found that Buhle Waste had all the documents necessary to
have challenged the 17 November 2022 extension within the period prescribed
by PAJA ,4 and that its failure to have instituted review proceedings timeously
was probably because , as the current service provider , it benefited financially by
serving the Department of Health during the extended period , which was already
close to a year .
[8] Despite the aforementioned finding the high court granted the following
declar atory relief:
‘1. It is declared that the tender for the “appointment of Service Providers to Render
Competitive Healthcare Waste Management for the Department of Health Institutions for a
thirty -six months” (“the tender”) …has lapsed because no valid extension of the tender period
occurred after the 17th of November 2022 and accordingly that the tender and RFP are of no
force and effect.
2. The award of any tenders to the tenth and fifteenth Respondents and any contracts entered
into by them thereafter by or on behalf of the first and second Respondents pursuant to and as
a result of the invalid extension of the tender periods are declared invalid and set aside.
3 City of Ekurhuleni Metropolitan Municipality v Ta kubiza Trading & Projects CC and Others [2022] ZASCA
82; 2023 (1) SA 44 (SCA).
4 Section 9 of PAJA provides:
‘Variation of time
(1) The period of -
(a) 90 days referred to in section 5 may be reduced; or
(b) 90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed period,
by agreement between the parties or, failing such agreement, by a court or tribunal on application by the person
or administrator concerned … .’
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3. The orders in paragraph 1 and 2 above are suspended for six months to allow for the re -
advertisement of the tender and for the appointment of suitable service providers to render
comprehensive healthcare waste management for the Department of Health Ins titutions.
4. No order as to costs is made.’
[9] The following two issues arise in the appeal . First, whether the high court
followed the correct procedure in setting aside the administrative action . Second,
whether the high court granted relief that was not sought by Buhle Waste .
[10] The question on whether the high court followed the correct procedure in
setting aside the administrative action , if found to be correct, would be dispositive
of this appeal . I turn to that enquiry. This Court in Millennium Waste Management
(Pty) Ltd v Chairperson of the Tender Board : Limpopo Province and Others held
that administrative action should ordinarily be dealt with through the provisions
of PAJA.5 Buhle Waste avoided reliance on the provisions of PAJA by seeking
declaratory relief in circumstances where it could have timeously sought a review
of the 17 November 2022 decision to extend the bid validity period and obtain
interdictory , alternatively declaratory and just and equitable relief.6 It did so,
opportunistically, so as to continue servicing the relevant institutions during the
extended period. In seeking the declaratory relief, Buhle Waste did not have to
comply with the timeframes as required in terms of PAJA .7 It is apparent that the
respondent would have had to bring a condonation application if it had proceeded
in terms of PAJA. In Minister of Health and Another NO v New Clicks South
Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as amici
curiae) , the Constitutional Court held as follows:
5 Millennium Waste Management (Pty) Ltd v Chairperson of the Tender Board: Limpopo Province and Others
[2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All SA 145; 2008 (2) SA 481; 2008 (5) BCLR 508; 2008
(2) SA 481 (SCA) .
6 Section 8 of PAJA.
7 Sections 7(1) and 9 of PAJA.
8
‘A litigant cannot avoid the provisions of PAJA by going behind it, and seeking to rely on
s 33(1) of the Constitution or the common law. That would defeat the purpose of the
Constitution in requiring the rights contained in s 33 to be given effect to by means of national
legislation.’8
[11] The facts of this matter underscore the danger of avoiding the provisions
of PAJA. T shenolo timeously indicated that it intended to exercise it s right s in
terms of PAJA . It awaited the delivery of the record in terms of Rule 53 before
filing a comprehensive answer to the review application .9 It was denied that righ t.
Counsel for the fifth appellant submitted that:
‘Buhle Waste’s pleaded case was that the bid validity survived past the year 2022 and was
extended from time to time until October 2023. Buhle Waste did not rely on the validity period
having lapsed on 17 November 2022. Despite this, the High Court granted an order declaring
that the tender validity period lapsed “because no valid extension of the tender period occurred
after the 17th of November 2022” . This is not the case which the appellants were called upon
to answer and could not have answered it without the benefit of that portion of the record of
the tender process relevant to the extension of the tender validity period .’ (My emphasis .)
[12] In addition, I find that Buhle Waste avoided seeking condonation for
bring ing the review application in terms of PAJA, which prejudiced the other
parties to the application. It compromised the public interest in the finality of
administrative action and trampl ed on the right s of the other parties affected by
the tender award. This was impermissible. The PAJA was enacted in response to
s 33 of the Constitution as the mechanism to guarantee administrative action that
is lawful, reasonable and procedurally fai r. After the hearing, in correspondence
dated 5 June 2025, Buhle Waste filed further documents before this Court.
8 Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign
and Another as amici curiae) 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) para 96.
9 Mamadi and Another v Premier of Limpopo Province and Others [2022] ZACC 26; 2023 (6) BCLR 733 (CC);
2024 (1) SA 1 (CC) para 39.
‘. . . The advantages to an applicant are that once the record and the reasons are obtained, the applicant may
supplement their founding affidavit, and the respondent is in a position to file a comprehensive answer . . .’.
9
Included therein are the respondent’s Practice Note, dated 19 October 2023, the
respondent’s amended Practice Note, dated 19 October 2023, the parties’ Joint
Practice Note dated 14 November 2023 , and the respondent’s Practice Note in the
Application for Leave to Appeal , dated 19 October 2023. The purpose for
supplementing its papers was to convey to this Court that in Part A , it had also
sought alternative relief in the form of a declaratory order. This occurred despite
Tshenolo having placed on record that it would not file an answering affidavit
without being furnished with a Rule 53 record. Furthermore, Tshenolo
emphasised , in its correspondence of 24 October 2023 to Buhle Waste that the
only issue set down for hearing before the high court would be in relation to the
interdictory relief.
[13] Despite the assurance given to Tshenolo that it would be afforded an
opportunity to respond to Part B once the Rule 53 record became available, the
matter was disposed of before that eventuality. This was impermissible for t hree
reasons : First, Buhle Waste did not allege that the tender had expired on 17
November 202 2; instead, its pleaded case was that it had timeously extended its
tender ‘as required’ but was unaware whether ‘each tender extension was done
lawfully and/or competently’. It therefore, re served its right to challenge any
extension ‘where the Rule 53 record demonstrates’ that an extension was not
validly done . Second, this was not the case the appellants were called upon to
meet in terms of Part A of the relief sought . They had also pointed out that in the
event that the high court proceeded with the declaratory relief , they would suffer
prejudice. Third, the letter from the Department calling for bidders to g rant the
extension cautioned as follows: ‘Should you not be willing to hold your tender valid for
the further period, it will of course lapse on expiry of the current validity period and will
therefore be ignored if the tender is not adjudicated within the period ….’
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[14] This Court in Aventino Ecotroopers Joint Venture and Others v The MEC
for the Department of Roads and Transport, Gauteng Province and Others10 held
that ‘the exclusionary stipulation’ permitted the relevant Department to exclude
bids of bidders who either fail to respond or refuse to hold their bids valid for the
requested extended period , and that whoever was unhappy with that condition ,
could have taken the department on review. The validity of the extensions ar ose
only in Part B of the application and not in the interdictory relief. It is common
cause that the record was not available at the time of the hearing , therefore Part
B of the application was not ripe for the hearing.
[15] A court is limited to the case it is called upon to determine. It was
impermissible for the high court to raise the 17 November 202 2 extension and to
pronounce on it in circumstances where the issue had not been fully canvassed.11
In this matter, it caused prejudice to all the appellants who were denied the
opportunity to plead their version as amplified by the Rule 53 record . In support
of this finding, I reiterate what this Court stated in Fisher and Another v
Ramahlele and Others (Ramahlele ):12
‘Turning then to the nature of civil litigation in our adversarial system , it is for the parties,
either in the pleadings or affidavits (which serve the function of both pleadings and evidence ),
to set out and define the nature of their dispute , and it is for the court to adjudicate upon those
issues. That is so even where the dispute involves an issue pertaining to basic human rights
guaranteed by our Constitution, for “it is impermissible for a party to rely on a constitutional
complaint that was not pleaded ”. There are cases where the parties may expand those issues by
the way in which they conduct the proceedings. There may also be instances where the court
may mero motu raise a question of law that emerges fully from the evidence and is necessary
10 Aventino Ecotroopers Joint Venture and Others v The MEC for the Department of Roads and Transport,
Gauteng Province and Others [2025] ZASCA 32 para s 11-14.
11 Minister of Safety and Security v Slabbert [2009] ZASCA 163; [2010] 2 All SA 474 (SCA) para 11: ‘The purpose
of the pleadings is to define the issues for the other party and the court. A party has a duty to allege in the pleadings
the material facts upon which it relies. It is impermissible for a plaintiff to p lead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues
falling outside the pleadings when deciding a case.’
12 Fisher and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395
(SCA) (Ramahlele ) paras 13 -14.
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for the decision of the case. That is subject to the proviso that no prejudice will be caused to
any party by its being decided. Beyond that it is for the parties to identify the dispute and for
the court to determine that dispute and that dispute alone. ’
[16] Furthermore , in Ramahlele this Court , stated that there is an exception to
the general rule. It stated as follo ws: ‘A court may sometimes suggest a line of argument
or an approach to a case that has not previously occurred to the parties. However, it is then for
the parties to determine whether they wish to adopt the new point. They may choose not to do
so because of it s implications for the further conduct of the proceedings, such as an
adjournment or the need to amend pleadings or call additional evidence. They may feel that
their case is s ufficiently strong as it stands to require no supplementation. They may simply
wish the issues already identified to be determined because they are relevant to future matters
and the relationship between the parties. That is for them to decide and not the court. If they
wish to stand by the issues they have formulated, the court may not raise new ones or compel
them to deal with matters other than those they have formulated in the pleadings or
affidavits .’13 (footnotes omitted.) (Own emphasis .)
[17] The high court also misdirected itself by going beyond the requirements
for a declaratory order , if met, by setting aside the award of the tender . When the
court makes a declaratory order , it acts in terms of s 21(1) (c) of the Superior
Courts Act .14 The jurisdictional facts for the declaratory order to be established
are whether the applicant has an interest in an existing, future or contingent right
or obligation. In United Manganese of Kalahari (Pty) Ltd v The Commissioner of
the South African Revenue Service and four other cases ,15 the Constitutional
Court confirmed that a court exercises a discretion when it grants or refuses
declaratory relief .
13 Ibid para 14.
14 The Superior Courts Act 10 of 2013.
15 United Manganese of Kalahari (Pty) Ltd v The Commissioner of the South African Revenue Services and four
other cases [2025] ZACC2; 2025 (5) BCLR 530 (CC) para 37 .
12
[18] In the exercise of it s discretion , the high court should have considered the
importance of the Rule 53 record. In Turnball -Jackson v Hibiscus Coast
Municipality and Others , the Constitutional Court held as follows:
‘Undeniably, a rule 53 record is an invaluable tool in the review process. It may help : shed
light on what happened and why; give a lie to unfounded ex post facto (after the fact)
justification of the decision under review; in the substantiation of as yet not fully substantiated
grounds of review; in giving support to the decision -maker’s stance; and in the performance of
the review ing court’s function ….’16
[19] Buhle Waste could forgo its right to rely on the Rule 53 record but could
not make that decision for the other parties to the litigation. The high court failed
in the exercise of its discretion to have regard to the importance of the Rule 53
record and Tshenolo’s right of access to the relevant part of the record before it
was required to file its answering affidavit. As the issues relevant to the decision
involved disputed factual issues and legal questions, declaratory relief was
inappropriate.
[20] In the circumstances of this matter, I find that the high court erred in set ting
aside administrative action through a declarator. It was the wrong procedure , and
that is dispositive of this matter. It is therefore unnecessary to deal with the second
issue referred to above. The relief granted by the high court exceeded that which
was prayed for and affected Tshenolo and other parties directly by depriving them
of the opportunity to file comprehensive answering affidavit s to the review
application .
[21] In the result, I grant the following order:
1 The appeal is upheld with costs including the costs of two counsel where so
employed.
16 Turnball -Jackson v Hibiscus Coast Municipality and Others [2014] ZACC 24; 2014; 2014 (6) SA 592 (CC);
2014 (11) BCLR 1310 (CC) para 37.
13
2 The order of the high court is set aside and replaced with the following:
‘The application is dismissed with costs such to include the costs of two
counsel where so employed.’
___________________
E BAARTMAN
JUDGE OF APPEAL
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Appearances:
For the first to fourth appellant s: W M Mokhare SC with M H Mhambi
Instructed by: Motsoeneng Bill Attorneys Inc, Sandton
Honey Attorneys, Bloemfontein
For the fifth appellant: K Tsatsawane SC
Instructed by: Weavind & Weavind Attorneys, Pretoria
MM Hattingh Attorneys Inc , Bloemfontein
For the respondent: K Premhid with C Juries and P Vabaza
Instructed by: Fairbridges Wertheim Becker Attorneys,
Sandton
Phatshoane Henney Attorneys, Bloemfontein .