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(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.

__________
DATE SIGNATURE


IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION
MBOMBELA (MAIN SEAT)

CASE NUMBER 5503/2023

25/07/2025

PREMIER OF MPUMALANGA APPLICANT

And

CAJV (PTY) LTD FIRST RESPONDENT
THE IFIRM TRADING & PROJECTS (PTY) LTD SECOND RESPONDENT

REVIEW JUDGMENT

SHAI AJ
Introduction

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[1] This is an opposed self-review application. It is worth noting from the outset
that the second respondent did not appear to argue its case.
[2] the application is brought on the basis of an illegality.
[3] There is also an unopposed condonation application for the filing of a further
affidavit by the applicant.
Background
[4] A tender was advertised in October 2014 under reference PRE40/14/MP. This
was in response to audit findings in the 203/14 financial year to the effect that
there was an increase in the number of provincial governments with a lack of
consequence management.
[5] It should be stated from the outset that this tender required multi-disciplinary
expertise including, but not limited to, litigation services. In their submitted
tender, first respondent listed ENS as their litigation subcontractor. ENS was
later substituted with Adendorff Theron Inc.
[6] The respondents were among those who submitted their bids and
consequently shortlisted. Shortlisted bidders made presentations to the Office
of the Premier (OTP) on 8 December 2014. In this presentation the first
respondent presented on a case management system (CiiMS). This system
was provided through Online Intelligence (Pty) Ltd. This is the system which
was selected by the OTP.
[7] A letter of appointment was sent to the first respondent on 5 January 2015
and same was accepted on 6 January 2015 by the first respondent. A Service

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Level Agreement (SLA) was concluded between the applicant and the first
respondent on 13 March 2015.
[8] At this stage, ENS had withdrawn as first respondent’s sub-contractor. The
first respondent enlisted the services of Adendorff Theron Inc (“Adendorff”), a
firm of attorneys. Adendorff remained the litigation subcontractor to the first
respondent throughout the subsistence of the tender. In rendering their
services, Adendorff would first obtain a power of attorney from the DG or HOD
of the relevant department. Payments for legal services rendered would then
be made to the first respondent, who in turn would pay Adendorff.
[9] The first respondent developed a system that would enable the province to
conduct data analysis on cases referred to the provincial departments.
[10] Problems started in 2016/17 when the Auditor General of South Africa
(AGSA) advised that it did not make sense that the OTP were paying for a
system they would not own. AGSA wanted to list the CiiMS software as an
asset of the OTP.
[11] Negotiations for the acquisition of the software started during which period
OTP enlisted the services of RUBO, its software advisor. The idea was to
determine a price for the acquisition of the CiiMS software.
[12] On 30 November 2016 an agreement was reached on transfer of ownership
and an amount was fixed for the transfer.
[13] The tender contract was extended on 24 November 2017. The period for the
extension was not stated but it would seem that the parties agreed on a two-
year extension period.

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[14] A new Premier came to office on 20 march 2018.
[15] It was on April 2018 that OTP requested funding from Provincial Treasury to
deal with the upgrade of CiiMS, based on the recommendations from RUBO.
On 18 April 2018 an addendum was signed in effect to accommodate the
costing structure of the upgrade, maintenance and support of the CiiMS for a
future period of 3 years. Additional funding for this was made available by
Provincial Treasury.
[16] In October 2018 Bid PRE/O40/18/MP was advertised. It is important to note
that the following note was inserted in the advertisement:
‘1. This bid is an extension of the 040/14 project
2. All service providers appointed will work on the CiiMS system
3. The current service provider for the system [CAJV] will assist new
service providers on the system”
[17] On 18 October 2018 Acting Director General Mohlasedi attempted to
unilaterally amend the terms of the SLA to a month-to month basis. This is
confusing as the contract had just been extended for a period of 3 years. After
resistance from the first respondent, Mohlasedi signed iFirm’s extension letter
under the 2014 Tender.
[18] An appointment letter for the 2018 Tender was signed on 9 May 2019. This
was for 3 years until 8 May 2022. No SLA was signed for this tender but first
respondent continued to render services.

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[19] An advice was sought from State Law Advisors on 29 April 2021 regarding the
040/14/MP and 040/18 MP bids.
[20] In June 2022 OTP sought advice from Adv Khoza SC on whether OTP could
legally terminate the contract between applicant and first respondent. The
advice was given in a form of an opinion on 29 November 2022. In that
opinion, it was stated that there was a presidential proclamation to the effect
that the contract be terminated and certain funds be recovered from the first
respondent. As it will be shown hereunder, the funds related to the acquisition
of the system.
[21] It was after this that Adendorff started withdrawing from litigation matters.
Issues
[22] The issues for determination are;
22.1 Whether the delay in filing the self-review should be condoned;
22.2 Whether the tender award should be reviewed and set aside.
22.3 If reviewed and set aside, what should happen to the services rendered by the
first respondent with regard to payments.
22.4 If reviewed and set aside, what should happen to the acquired system and the
monies paid by the applicant for its acquisition.
Condonation

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[23] Where there is a delay in bringing a self-review, organs of state are enjoined
to explain their delay1. There are no prescribed periods within which a self-
review application should be brought. The only yardstick is that it should be
brought without undue delay.
[24] It was held by the Constitutional Court that an organ of state reviewing its own
decision must be taken as knowing of the decision and the reasons for it when
the organ state takes the decision2.
[25] The question as to whether a delay is unreasonable is “a factual enquiry upon
which a value judgment is made, having regard to the circumstances of the
matter”3. This ‘involves a “factual, multi-factor and context-sensitive” enquiry in
which a range of factors - the length of the delay, the reasons for it, the
prejudice to the parties that it may cause, the fullness of the explanation, the
prospects of success on the merits - are all considered and weighed before a
discretion is exercised one way or another”4
[26] In casu, the applicant initiated the self-review after a legal opinion was sought
and given on the legality of the contracts.
[27] I, after considering the issues involved, find that this is a matter wherein
condonation for the delay should be granted and it is thus granted.
Evaluation

1 See Golden Core Trade and Invest (PTY) Ltd v Merafong City Local Municipality and Another (338/2022)[2023]
ZASCA 126; [2023] 4 All SA 589 (SCA) (29 September 2023
2 Aurecon South Africa (Pty) Ltd v Cape Town City 2016 (2) SA 199 (SCA)
3 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited 2019 (4) SA 331 (CC), paragraph 48
4 Valour IT v Premier, North West Province and Others 2021 (1) SA 42 (SCA) para 30

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[28] This is a self-review application. It is trite that this is allowed where there is an
illegality.
[29] The contracts have run their course and all parties have performed under the
contracts. The only outstanding issue is payment of the amounts due to the
respondents.
[30] It should be stated from the outset that the tender was designed by the
applicant after their internal need analysis. An outsider would have expected the
applicant to have complied with its prescripts before going out on tender. The
respondents were responding to the advertised tender. It is worth noting that no
single entity could have complied with the contractual terms without entering into a
joint venture’ or enlisting the services of third parties. I fail to understand how an
organ of state could have designed a tender/contract that invited other service
providers to contract through a back door. For instance, a firm of attorneys was
contracted to render services without submitting a tender for the rendering of legal
services.
[31] The terms of reference for the tender were vague and this later led to the first
respondent designing specifications of the tender, without an invitation for
competitive tenders.
[32] The multi-disciplinary nature of the tender invite led the first respondent in
particular to enlist the services of Adendorff Theron Inc, a firm of attorneys, to assist
in fulfilling the first respondent’s duty to render legal services under the contract. It is
not in dispute that these attorneys approached each individual department and
entered into contract with them before rendering their legal services. The rendering
of such legal services benefited the applicant.

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[33] However, what is wrong in the arrangement between the first respondent and
the attorneys is the practice of the first respondent invoicing for more than what the
attorneys are charging, and remitting the balance to the attorneys. This could be
interpreted as attorneys sharing fees with non-legal practitioners. This is what is
prohibited by the Legal Practice Act.
[34] I however, cannot find that the attorneys should not be paid for rendered legal
services. Payments of rendered legal services should, however, be limited to
invoices or bills provided by the attorney, not the marked-up amounts billed by the
first respondent.
[35] I cannot find any wrongdoing on the part of the respondents which warrants
their being penalised in anyway. They were, on the facts before court, not complicit
in any of the activities that led to the design and award of the tender. They diligently
delivered in accordance with the contractual terms. I, therefore, see no reason why
they should forfeit all payments related to the faithfully rendered services.
[36] This is a case where there should be an exception to the notion that a party
cannot benefit from an impugned contract. The respondents are innocent and the
applicant has benefited from the services rendered by the respondents. The services
rendered are linked to costs expended by the respondents. It would be unfair and
unjust to order that all payments be forfeited.
[37] Organs of state should not be encouraged to, and cannot, avoid their
contractual obligations.
Acquisition of the system

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[38] The decision to acquire the system from the first respondent without going out
on an open tender was irregular and amounted to an illegality as it went against
procurement prescripts. Once a need for such acquisition was determined, the first
respondent should have invited other entities to submit bids. This was not done.
However, the acquisition was finalised and amounts determined as to how much the
first respondent should be paid. The first respondent ran the risk of paying an
amount that could have been higher than market-related values. It is for this reason
that the services of an independent body or person should be enlisted to determine a
market-related value.
[39] In the event of there having been an over-payment, the first respondent
should pay back the difference to the applicant. Where it is found that there was an
underpayment, the applicant should pay the difference to the first respondent.
[40] The independent body or person mentioned in 37 above should also make a
determination on all amounts to be paid for rendered services.
[41] I, due to cumulative effect of what has been stated above, see no reason why
the appointment of the first respondent to provide CiiMS under procurement
processes PRE/040/14/MP and PRE/040/18/MP should not be reviewed and set
aside. This consequently applies to any addendum, any service level agreement and
extension related to this procurement process. The same fate befalls the
appointment of the second respondent under the same procurement processes.
Costs
[42] It is trite that costs follow the results. However, in this self-review matter, the
facts are such that there should be a deviation from this mantra.

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[43] It could not be expected of the respondents not to have opposed the
application as the relief sought in the notice of motion would have adversely affected
their interests in the contracts. There is no other way in which they could put their
side of the story to the court without opposing the application.
[44] It is the conduct of the functionaries of the applicant which brought about the
illegality complained of. I see no reason why it should be the respondents who are
penalised for the conduct of these functionaries, by ordering costs against them.
[45] I, therefore, find that it is the applicant that should pay the costs herein.
Conclusion
[46] Consequently, the following order is made:
46.1 The following decisions are declared unlawful and constitutionally invalid:
46.1.1 The decision to permit the first respondent to render legal services under
procurement process PRE/040/14/MP;
46.1.2 The appointment of the first respondent to provide the Case Information and
Investigation Management System (CiiMS) under procurement process
PRE/040/14/MP, and the payment of invoice 100425 for the customisation of
CiiMS;
46.1.3 The conclusion of the service level agreement with the first respondent in
terms of the PRE/040/14/MP procurement process;
46.1.4 The extension of the first respondent’s service level agreement, set out in a
letter dated 24 November 2017;

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46.1.5 The conclusion of a first addendum to the first respondent’s service level
agreement, in terms of which the Provincial Government took ownership of,
and entered into, a perpetual licence agreement over CiiMS Mpumalanga
version 6.0 RC43.346.11285, and in terms whereof the first respondent
rendered services related to this CIIMS version.
46.1.6 The conclusion of a second addendum to the first respondent’s service level
agreement, in terms of which the Provincial Government took ownership of,
and entered into, a perpetual licence agreement over CiiMS Mpumalanga
version 6.7.2, and in terms whereof the first respondent rendered services
related to this CIIMS version.
46.1.7 The appointment of the first respondent to render legal services under
procurement process PRE/040/18/MP;
46.1.8 The appointment of the first respondent to render legal services under
procurement process PRE/040/14/MP;
46.1.9 The service level agreement concluded with the second respondent pursuant
to its appointment in terms of PRE/040/14/MP;
46.1.10 The extension of the second respondent’s service level agreement;
46.1.11 The appointment of the second respondent to render legal services under
procurement process PRE/040/18/MP.
46.2 The following are hereby reviewed and set aside:
46.2.1The decision to permit the first respondent to render legal services under
procurement process PRE/040/14/MP;

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46.2.2 The appointment of the first respondent to provide the Case Information and
Investigation Management System (CiiMS) under procurement process
PRE/040/14/MP, and the payment of invoice 100425 for the customisation of
CiiMS;
46.2.3 The conclusion of the service level agreement with the first respondent in
terms of the PRE/040/14/MP procurement process;
46.2.4 The extension of the first respondent’s service level agreement, set out in a
letter dated 24 November 2017;
46.2.5 The conclusion of a first addendum to the first respondent’s service level
agreement, in terms of which the Provincial Government took ownership of,
and entered into, a perpetual licence agreement over CiiMS Mpumalanga
version 6.0 RC43.346.11285, and in terms whereof the first respondent
rendered services related to this CIIMS version.
46.2.6 The conclusion of a second addendum to the first respondent’s service level
agreement, in terms of which the Provincial Government took ownership of,
and entered into, a perpetual licence agreement over CiiMS Mpumalanga
version 6.7.2, and in terms whereof the first respondent rendered services
related to this CIIMS version.
46.2.7 The appointment of the first respondent to render legal services under
procurement process PRE/040/18/MP;
46.2.8 The appointment of the first respondent to render legal services under
procurement process PRE/040/14/MP;

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46.2.9 The service level agreement concluded with the second respondent pursuant
to its appointment in terms of PRE/040/14/MP;
46.2.10 the extension of the second respondent’s service level agreement;
46.2.11 The appointment of the second respondent to render legal services under
procurement process PRE/040/18/MP.
46.3 The following just and equitable relief is granted:
46.3.1 The applicant is to pay for all reasonable services rendered, including legal
services in accordance with the attorneys’ bills;
46.3.2 The applicant is directed to approach the independent Regulatory Board of
Auditors in order to appoint a suitably qualified auditor, to prepare a report to
this Court within 90 days from the date of order, indicating the profits earned
by the First Respondent and the basis thereof, if any, following from:
46.3.2.1 the development of a customised version of CiiMS-in terms of which
the First Respondent rendered and was paid for IN100425;
46.3.2.2 Acquiring ownership of, and entering into, a perpetual licence
agreement over CiiMS Mpumalanga version 6.0 RC 43.346.11285, together
with all amounts paid to the first respondent in terms of the first addendum;
46.3.2.3 Acquiring ownership of, and entering into, a perpetual licence
agreement over CiiMS Mpumalanga version 6.7.2, together with all amounts
paid to the first respondent in terms of the first addendum;
46.3.2.4 Any other services rendered, excluding 46.3.2.1 to 46.3.2.3.

46.4 The report mentioned in 18.3 above is to be provided to the applicant and first
respondent, and filed in Court.
46.5 Upon receipt of the report, the applicant and first respondent are permitted to,
w ithin 30 days, file a further affidavit setting any representations on the
findings of the report, for the consideration of the court, in order for a just and
equitable finding to be made on the repaymen ts of profits by the first
respondent.
47.6 The person appointed in terms of 46.3 above may , through the applicant, or of
their ow n accord, approach the Co urt for any ancillary relief in order to carry
out their obligations.
46.7 The applicant is to file monthly updates on the manner in w hich this order is
being carried out, until such time as finality on the matter has been reached.
46.8 The applicant's unopposed application to adduce a further affidavit is granted,
and no costs order is made in this regard.
46.9 The applicant shall pay the costs of the main application, including the costs
of two Co unsel, on Scale C.
SHAIAJ
DATE OF H EARING : 4-5 MARC H 2025
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DATE OF JUDGMENT : 25 JULY 2025

This judgment was handed down electronically by circulation to the parties’ representatives by
email and release to SAFLII. The date and time for hand-down is deemed to be 11h00 on 25
JULY 2025

FOR THE APPELLANT: KA-MBONANE COOPER
C/O CHRISTO SMITH ATTORNEYS
TEL: 087 131 3569
Email address: athisten@kclaw.africa, naadiya@kclaw.africa,
anetta@kclaw.africa





FOR THE FIRST RESPONDENT: ADENDORFF THERON INC
TEL: 013 752 3902
EMAIL: carl@adendorffs.com; dricus@adendorffs.com

FOR THE SECOND RESPONDENT: NKOSI ATTORNEYS INC
C/O JF SHABANGU INC
TEL: 013 591 5365
EMAIL: siphiwe@nkosiattorneyinc.co.za

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