SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy



IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: 11175/2024

In the matter between:

INGEROP SOUTH AFRICA (PTY) LTD Applicant
(Registration number 1995/002040/07)

and

MINISTER OF WATER AND SANITATION First Respondent

DIRECTOR-GENERAL, DEPARTMENT OF Second Respondent
WATER AND SANITATION

BIGEN AFRICA SERVICES (PTY) LTD Third Respondent

Neutral citation: Ingerop South Africa (Pty) Ltd v Minister of Water and Sanitation
and Others (Case no 11175/2024) [2025] ZAWCHC (06 August 2025)

Coram: LEKHULENI J and SIPUNZI AJ
Heard: 13 June 2025
Delivered: Electronically on 6 August 2025

Summary: Administrative law – Application to review a tender award – Applicant
relying on s 21 of the Superior Courts Act 10 of 2013 as basis for insisting that this
court has jurisdiction – Jurisdiction determined in terms of section 1 of the Promotion
of Administrative Justice Act 3 of 2000 – Court lacks jurisdiction to hear the matter -
Application dismissed with costs.


ORDER

1. This court lacks jurisdiction to hear the review application.
2. The applicant’s application to review the decision to award a tender to the
third respondent is hereby dismissed.
3. The applicant is ordered to pay the costs of this application on a party and
party scale, including the cost of two counsel where so employed, on Scale C.


JUDGMENT


SIPUNZI AJ (LEKHULENI J concurring):

Introduction

[1] This an opposed application for the review and setting aside of the decision of
the Minister and/or Director General of the Department of Water and Sanitation to
award the tender of raising th e Clanwilliam Dam: Professional Multi -disciplinary
Services to Bigen Africa Services. At the inception, the applicant sought relief as set
out in the notice of motion in the following terms:

1. To the extent that this court m ay find it necessary, the Applicant’s non -
compliance with the provisions of Section 7 of the Promotion of Administrative

Justice Act, 3 of 2000, and in impugning the decision mentioned directly
herein below, is condoned as being in the interest of justice.
2. To review and set aside the award of the tender under bid number: DWS23-
1222 WTE OLIFANTS -DORING RIVER WATER RECOURCES PROJECT:
RAISING OF CLANWILLIAN DAM: PROFESSIONAL MULTI -
DISCIPLINARY SERVICES (“The tender”) by the first and or second
respondent to the third respondent.
3. That the contract concluded with the third respondent, if any, pursuant to and
as a result of the award of the aforesaid tender be set aside.
4. An order in terms of s 8 of P romotion of Administrative Justice Act 3 of 2000
(‘PAJA’) in term s of which the tender be awarded to the applicant,
alternatively, remitting the said order to the first and /or second respondent to
be evaluated and adjudicated by the bid evaluation committee and the bid
adjudication committee subject to the directions o f this Honourable Court
and/or with due considerations of the findings of the court in these
proceedings.
5. That the first and/or second respondent be ordered to pay the costs, jointly
and severally the one paying the other to be absolved, of this application on
Scale C.
6. That the third respondent be ordered to pay the costs of this application if the
application is opposed by the third respondent.
7. Further and/or alternative relief.’

[2] During the oral submissions, the applicant departed from its previous relief
sought in the notice of motion and delivered a draft order, in terms of which it sought
relief that varied that which was stated in their notice of motion. In the draft order, the
applicants sought an order, as set out below:

1. ‘The applicant’s non -compliance with the provisions of section 7 of the
Promotion of Administrative Justice Act, 3 of 2000 is condoned, and the time
period cast in the said section is extended in terms of section 9 of this Act to
the date upon which t his application was issued, as being in the interests of
justice.

2. The award of the tender under bid number DWS23 -122 WTE OFIFANTS -
DORING RIVER WATER RESOURCES PROJECT : RAISING OF
CLANWILLIAM DAM: PROFESSIONAL MULTI -DISCIPLINARY SERVICES
by First and/or Second Respondent to the Third Respondent is declared
unlawful, is reviewed and set aside.
3. The contract concluded between the Respondents pursuant to and as a result
of the award of the aforesaid tender is set aside.
4. The declaration of un lawfulness and the striking down of the service level
agreement concluded between the Respondents is suspended for a period of
180 days, subject to the following directions:
4.1. The First and Second Respondents are ordered to within this period
embark upon a fresh process for the awarding of the said tender, which
shall include the calling for: evaluation and awarding of a new tender
and the conclusion of a new service level agreement with the
successful tenderer.
4.2. The First and Second Respondents are to take al l necessary steps to
ensure that there is not to be a delay in the examination of the
construction related work consequent to the new tender process
ordered above.
4.3. The First and Second Respondents are ordered to take all necessary
steps to ensure that the appointed successful tenderer will provide all
necessary engineering related services upon the expiry of this period,
which steps are to include (but are not limited to) the provision of an
updated and aug mented scope of the works by means of projections
and estimations if necessary in relation to work the third Respondent is
to perform within this time period, and the work the successful tenderer
is to perform thereafter.
4.4. All issues related to payment - and liability for work already done by the
Third Respondent is to be dealt with further in terms of the service level
agreement concluded between them, and on the basis that the
agreement had terminated at the expiry of the time period mentioned
supra.

5. The First, Second and Third Respondents are ordered to pay the costs of this
application jointly and severally, the one paying the other to be absolved, with
the costs of counsel to be on Scale C.’

[3] The application is opposed by all the respondents. According to t he
respondents, there had been undue and unreasonable delay on the part of the
applicant, which should not be condoned . The respondents complained about the
non-joinder of Tlou Integrated, a subcontractor to the third respondent . They
contended that the review applicatio n had no substance as there were no
irregularities in the award of tender to the third respondent. Notably, t he third
respondent also raised a point that this court lack ed the necessary jurisdiction to
adjudicate this dispute.

The parties

[4] The applicant is Ingerop South Africa (PTY) LTD ( ‘Ingerop’) (Registration
number: 1995/00204 0/07), a private company with limited liability registered and
incorporated in terms of the relevant Statutes of the Republic of South Africa. The
applicant carries on the business of a professional consulting engineering firm with
the main place of business located at 1 st Floor, 61 Katherine Street, Sandton,
Johannesburg, Gauteng Province.

[5] The first respondent is the Minister of Water and Sanitation ( ‘The
Department’) in her capacity as such and whose address for purposes of the
application is 1 […] P[…] Street, 15th Floor, Room 1 […], Cape Town, Western Cape
Province and The State Attorney, 4 th Floor L […] L[…] C[…], 2 […] L[…] Street,
Central, Cape Town, Western Cape Province.

[6] The second respondent is the Director General : Department of Water and
Sanitation in his capacity as such and whose address for purposes of the application
is 1 […] P[…] Street, 15 th Floor, Room 1 […], Cape Town, Western Cape Province
and The State Attorney, 4 th Floor L[…] L[…] C[…], 2[…] L[…] Street, Central, Cape
Town, Western Cape Province.

[7] The third respondent is Bigen Africa Services (P ty) L td (‘Bigen’), a private
company with limited liability registered and incorporated in terms of the relevant
Statutes of the Republic of South Africa. The third respondent carries on the
business of a professional consulting engineering firm and has its principal place of
business located at 3 rd Floor, N[…] B[…], A[…] Building, Carl Cronje, Bellville, Cape
Town, Western Cape Province.

Facts

[8] On 13 December 2022, the Department through its website as well as various
other e -tender portals published an invitation to bid for the professional multi-
disciplinary services under bid number DWS23-1222 W TE Olifants-Doring River
Water Re sources Project: Raising of Clanwilliam Dam: Professional Multi -
Disciplinary Services . The closing date for the tender was originally listed as 23
February 2023, which date was subsequently extended by way of addendums to 16
March 2023.

[9] The tender evaluation methodology consisted of five phases. The phases
followed each other chronologically in the following order:

1. Phase 1: The Mandatory requirements. According to Clause 10.3.1, at page
23 of the Tender Document, failure to comply with this phase requirement s
would lead to immediate disqualification of a bid . There are three specific
requirements for bidders, namely, firstly, attendance of the compulsory on -
site/physical briefing session and the bidders name must appear o n the
attendance register; Secondly, the lead professional engineer must submit an
active and valid certified copy of professional registration with the Engineering
Council of South Africa (ECSA) and a comprehensive curriculum vitae; Lastly,
a bidding company had to submit proof of valid and current professional
indemnity insurance to the value of bid price.
2. Phase 2: Pre-qualification criteria, being the 30% mandatory sub-contracting
of the value of the bid to a specific EME OR QSE. The agree ment between

of the value of the bid to a specific EME OR QSE. The agree ment between
the bidder and the sub-contracting company must be submitted along with the
bid. The documents must include a valid B-BBEE status level certificate, or a

sworn state ment or affidavit of the sub -contractor; proof a sub-contactor’s
Central Supplier Database (CSD) registration; Tax Compliant status PIN page
from SARS and pro-forma sub-contracting agreements signed by both parties.
3. Phase 3 : Functionality/ Technical evaluation. Bidders had to score at least
70% for func tionality, otherwise they will be disqualified as technically
incompetent, unacceptable and non -responsive. These relate to the technical
experience of the bidder , their methodology or functionality, inclusive of the ir
proposed work programme and capacity to overcome challenges.
4. Phase 4 : Administrative Compliance. the bidders were required to be
registered with the National Treasury database; tax compliance , active
registration with Companies & Inte llectual Property Commis sion and they
must furnish letters of good standing with professional regulators . The bidders
must have completed and signed all prescribed forms and in an overall
administrative compliance; and
5. Phase 5: Price and B -BBEE status level of contribution. Where the price will
be determined in terms of the preferential procurement regulations . Each
bidder would be required to submit original valid B-BBEE status level
certificate.

[10] There were f our (4) bids received, one from Bigen the third respondent ; the
second bid was from Ingerop who is the applicant ; the third and fourth bid were
received from Isao and Knight Piesold/Gibb JV respectively. The applicant became
disqualified at the Phase 2 level which the applicant described as unlawful,
unjustifiable and without equitable reasons. Isao was disqualified at phase 1 due to
its failure to attend the compulsory briefing, which was the first requirement of phase
1 level.1 Knights Piesold/Gibb JV was disqualified at phase 1 due to its failure to
submit a valid professional indemnity insurance policy along with its bid.

[11] When the applicant was disqualified at phase 2, it was deemed to be non -

[11] When the applicant was disqualified at phase 2, it was deemed to be non -
responsive. This was occasioned by th e alleged failure of the applicant to submit a
proforma sub-contract agreement of 30 % of the value of the contract, to an at least
51% black owned company, a mandatory condition of the tender. The applicant

1 BEC report in paragraph 6.2.1

contended that it had filed a letter, the essenc e of which undertook that an
agreement would be entered into if the tender was granted to the applicant and not
an actual agreement.

[12] The bid price of the third respondent was R199 981 898 61. However, they
submitted the proof of professional insurance for R100 million.2 In terms of the third
requirement of phase 1 level, they would have been non -compliant. The applicant
contended that , for this reason, they ought to have been disqualified for failure to
submit proof of a valid professional indemnity insurance to the value of the bid price,
namely R199 981 898.61. The applicant asserted that n otwithstanding the failures to
comply with the third requirement of phase 1, and an inconsistency on the part of the
Department, the third respondent and Knight/Gibb JV were allowed to progress to
phase 2.

[13] On 22 May 2023, the applicant was advised that it had been disqualified. The
reasons for this decision were provided on 16 June 2023. On 17 August 2023, the
applicant launched an urgent application in which it sought to interdict the
implementation of the tender award at the Gauteng Division, Pretoria . This
application was struck off the roll for lack of urgency.

[14] On 9 October 2023, when the Gauteng High Court provided its reasons, and
amongst others, it remarked that:

‘[11] I cannot understand why this information caused the launch of the urgent
application. The applicant had known since 22 May 2023 that the appl icant’s
bid had been unsuccessful. It stands to reason that at the time the tender had
been awarded and the applicant would have made enquiries at that stage as
to whom the entity was to who the tender had been awarded. The applicant
could have launched a review application at the time but chose to engage with
the first respondent in correspondence. I cannot find that it was the first
respondent’s duty to advise as to which steps to be taken in the
circumstances.

2 BEC report on page 4, point 3

[12] In the consequences I found the appli cation not to be urgent, as the
applicant had since 22 May 2023 that the applicant’s bid for the tender was
unsuccessful and had not acted immediately by either approaching the Court
for the interim interdict at the time or launching a review application o n an
urgent basis.’3 (my emphasis)

[15] Subsequent thereto, th e applicant instituted a second application in which it
sought to interdict the operations that had already commenced at Clan william Dam.
In March 2024, the second application was argued before the Gauteng Division of
the High Court. This application was dismissed on 1 1 December 2024. On 24 May
2024, the applicant issued review application in this court to challenge the decision
to award the tender to the third respondent. The main complaint raised by the
applicant was that its elimination at phase 2 evaluation was unfair and/or wrongful.
The applicant also complained that the third respondent was non-responsive at
phase 1 evaluation and ought to have been disqualified on that reason.

Preliminary Issues

[16] Before the determination of the merits of the challenge to the appointment of
the third respondent, various preliminary questions arose for the court to consider,
namely:

1) Whether this court ha d the necessary jurisdict ion to determine the merits of
this application;
2) Whether the application by the third respondent to file a further affidavit in
accordance with Uniform Rule 6(5)(e) of the Uniform Rules for the court to
receive the latest update on the work performed on site should be granted;
3) Whether non -compliance with section 7 of PAJA, which prescribes specific
timeframes within which a review application must be issued should be
condoned;
4) Whether, Tlou Integrated Tech CC, a BBEE company that was sub-contracted
by the third respondent ought to have been joined in the review application;

3 Ingerop South Africa (PTY) LTD v Department of Water and Sanitation and Others (Case number

3 Ingerop South Africa (PTY) LTD v Department of Water and Sanitation and Others (Case number
82093/2023) GHC, 9 October 2023, paras 11 and 12

5) Whether certain specified averments in the applicant’s replying affidavit
should be struck-out. I turn to deal with these issues ad seriatim.

[17] I must mention that t he third respondent’s application in terms of Rule 6(5)(e)
was not opposed and was granted by agreement at the commencement of the
hearing. I turn to consider the preliminary issue relating to jurisdiction.

Jurisdiction

[18] The respondents impugned the jurisdiction of this court. The res pondent
contended that this court does not have the requisite jurisdiction to hear this matter.
Interestingly, the applicant did not include an averment to allege that this court had
the requisite jurisdiction over this application in its founding affidavi t. The applicant
traversed matters relating to jurisdiction in its reply to the point in limine raised by the
third respondent.4

[19] The applicant relied on the provisions of s 21(1) of the Superior Court Act 5
and the c ommon law in asserting that these provisions conferred the necessary
jurisdiction to this court and on matters that arose within its territorial jurisdiction
particularly in that the Clan william Dam is situated in the area of jurisdiction of this
court. This became apparent when the applicant replied to the point in limine that
was raised by the third respondent. However, when the matter was heard, Mr
Grobler SC, counsel for the applicant departed from that version and relied on the
definition of ‘Court’ in s 1 of PA JA particularly, the phrase ‘within whose area of
jurisdiction the administrative action occurred or admini strator has his or her or its
principal place of administration or the party whose rights have been affected is
domiciled or ordinarily resident or the adverse effect of the administrative action was,
is or will be experienced ’. He submitted that the adverse effect of the administrative

4 Third respondent’s answering affidavit, 7.1 and 8

4 Third respondent’s answering affidavit, 7.1 and 8
5 ‘Superior Courts Act, 10 of 2013, S 21(1) A Division has jurisdiction over all persons residing or
being in, and in relation to all causes arising and all offences triable within , its area of jurisdiction and
all other matters of which it may according to law take cognizance, and has the power - (a) to hear and
determine appeals from all M agistrate Courts within its area of jurisdiction; (b) to review the
proceedings of all such courts; (c) in its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent right or obligation , notwithstanding that
such person cannot claim any relief consequential upon the determination.’

action would be felt by the applicant at the Clanwilliam Dam if the administrative
action awarding the tender to the third respondent was not set aside.

[20] Mr Els SC , counsel for the third respondent, impugned the jurisdiction of this
court to hear the matter and asserted that the head offices of the respondents were
both within the Gauteng Division juri sdiction, and all the administration; evaluation ,
adjudication and decision of the tender was carried out in Pretoria. He argued that
the High Court Gauteng Division had the jurisdiction over this review application. In
support of his argument Mr Els SC relied on s 1 of PAJA which regulates the
conferring of jurisdiction on administrative action disputes. Furthermore, counsel
relied on TMT Services & Suppliers (Pty) Ltd t/a Traffic Management Technologies v
The MEC: Department of Transport , Province of KwaZulu Natal and Others, 6 to the
extent that it clarified the determination of jurisdiction on PAJA matters, the exclusion
of the Superior Court and common law applications to such matters.

[21] To give context to the view I take in this matter and to the order made
hereinbelow, I deem it wise to traverse the law and the relevant authorities on
jurisdiction in matters falling with in the application of PAJA. For that reas on, I turn to
consider the law on jurisdiction on PAJA cases.

The Law

[22] For the purposes of administrative action, a 'Court' means-

‘a High Court or another court of similar status;
Within whose area of jurisdiction the administrative action occurred or the
administrator has his or her or its principal place of administration or the party
whose rights have been affected is domiciled or ordinarily resident or the
adverse effect of the administrative action was, is or will be experienced.’7


6 2022 (4) SA 583 (SCA).
7 Promotion of Administrative Action Act 3 of 2000, s 1 , Definitions

[23] In TMT Services & Suppliers (PTY) LTD v MEC: Department of Transport
(supra), the court clarified four instances in which a court would have jurisdiction in
PAJA review proceedings, as:

‘1. The high court within whose area of jurisdiction the administrative action
occurred;
2. The high court within whose area of jurisdiction the administrator who took
the administrative action has the principal place of administration;
3. The high court within whose a rea of jurisdiction the person whose rights
have been affected by the ad ministrative action is domiciled or ordinarily
resident; and
4. The high court within whose area of jurisdiction the adverse effects of the
administrative action was, is or will be experienced.’8

[24] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism
and Others,9 the court emphasised that, ‘the provisions of section 6 divulge a clear
purpose to codify the grounds of judicial review of administrative action as defined in
PAJA. The cause of action for the judicial review of administrative action now
ordinarily arises from PAJA , not from the common law as in the past. And the
authority of PAJA to ground such causes of action rests squarely on the constitution .
It is not necessary to consider here causes of action for judicial review of
administrative action that do not fall within the scope of PAJA. As PAJA gives effect
to s 33 of the Constitution , matters relating to the interpretation and application of
PAJA will of course be constitutional matters.’

[25] In the case of Gcaba v Minister of Security 2010 (1) BCLR 35 (CC) ,10 the
court held that, ‘Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in Chirwa, and not the substantive merits of the case. The court observed that in
the event of the court’s jurisdiction being challenged at the outset ( in limine ), the
applicant’s pleadings are the determining factor. They contain the legal basis of the

applicant’s pleadings are the determining factor. They contain the legal basis of the

8 TMT Services & Supplies (PTY) LTD t/s Traffic Management Technologies v MEC: Department of
Transport, Province of KwaZulu Natal and Others (Case no. 1059/2020) [2022] ZASCA 27 (15 March
2022) para 14
9 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004]
ZACC 15; 2004 (4) SA 490 CC, para 25
10 Gcaba v Minister of Safety and Security 2010 (1) BCLR 35 CC, para 75

claim under which the applicant has chosen to invoke the court’s competence. The
court further noted that w hile the pleadings - including in motion proceedings, no t
only the formal terminology of the notice of motion, but also the content s of the
supporting affidavits - must be interpreted to establish what the legal basis of the
applicant’s claim is, it is not for the court to say that the facts asserted by the
applicant would sustain another claim, cognisable only in another court.’

Discussion of Jurisdiction

[26] At the outset, I must stress that there is a difference between the jurisdiction
founded on s 21 of the Superior Courts Act as against that found in s 1 of PAJA .
Until the challenge to the jurisdiction of this court , it was abundantly clear from the
papers that the applicant was ignorant of the definition of a ‘court’ for purposes of
PAJA judicial review. In its initial answer to the point in lim ine raised by the third
respondent, the applicant expressly relied on the provisions of s 21(1) of the
Superior Court s Act and the common law, as the basis for insisting that this court
had the necessary jurisdiction.

[27] As it was pointed out in Gcaba v Minister of safety and Security, ‘that
jurisdiction is determined on the basis of the pleadings, and not the substantive
merits of the case. In the event of the court’s jurisdiction being challenged at the
outset, the applicant’s pleadings are the determining factor, as they contain the l egal
basis of the claim under which the applicant has chosen to invoke the court’s
competence.’11The applicant mainly tied its case on the geographical location of the
Clanwilliam Dam, which is within the Western Cape Province and within the
jurisdiction o f this court . It argued that the entire project was executed at the
Clanwilliam Dam, located in the Western Cape and therefore within the jurisdictional
area of this Court.12

[28] Belatedly, during oral arguments, the applicant’s counsel was in agreement

[28] Belatedly, during oral arguments, the applicant’s counsel was in agreement
that jurisdiction herein could only be determined in terms of s 1 of PAJA and as also
outlined in the TMT Services & Sup plies decision. With reference to the TMT

11 Gcaba v Minister for safety and security 2010 (1) BCLR 35 (CC), para 75
12 Applicant’s replying affidavit, para 24-26

Services Supplies case, the applicant acknowledged that, parties affected by and
those who made the administrative decision were domiciled and their ordinar y or
principal business residents fell within the jurisdiction of the Gauteng Division of the
High Court. The applicant however argued that this court found jurisdiction on the
basis that the adverse effects of the administrative action would be experienced at
the Clanwilliam Dam which fell within the territorial area of the Western Cape , and
thereby conferring the jurisdiction to this Court.

[29] On the other hand, the respondents were emphatic in that, the adverse effects
of the administrative decision or action of the first and second respondents w ere felt
by the applicant, whose residence fell outside the jurisdiction of this court and within
the area of jurisdiction of the Gauteng High Court, where the applicant was resident.

[30] The fact that the dam which was the subject matter of the dispute between the
parties was located within the territorial boundaries of the Province of the Western
Cape remained a neutral factor because it was not necessary to consider the
location of the cause of action for judicial review of administrative action .13 The
location of the dam did not turn on any significance because jurisdiction prescribed
in terms of PAJA was not based on the location of the cause of action.

[31] Noteworthy, the applicant launched this application in this court despite the
fact that there was a pending application for interdictory relief in the Pretoria High
Court at the time this application was issued. Clearly, on these facts, it can be
reasonably inferred that the applicant beli eved that the court with the necessary
jurisdiction in this matter was the Pretoria High Court. It seems that the applicant
chose to institute review proceedings in this court for convenience purposes.
However, such decision conflicts with s 1 of PAJA. Furthermore, it should be borne

However, such decision conflicts with s 1 of PAJA. Furthermore, it should be borne
in mind that questions of convenience do not arise when a high court decides
whether it has jurisdiction in terms of PAJA.14


13 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (supra)
14 TMT Services & Supplies (Pty) Ltd t/a Traffic Management Technologies v MEC: Department of
Transport, Province of KwaZulu-Natal and Others ( Case no. 1059/2020) [2022] ZASCA 27 (1 5 March
2022), para 35

[32] When all the decisive jurisdictional factors listed in TNT Services and
Supplies, together with the provisions of s 1 of PAJA are construed correctly and
applied to the facts at hand, the applicant’s choice of this Court lacked in all
respects. Most importantly, the decision maker s in the administrative decision had
their principal place of business in Pretoria ; the third respondent and the applicant
who were directly affected by the admi nistrative decision both had their principal
places of business within the territorial jurisdiction of the Gauteng Division ; the
administrative decision was taken in Pretoria . From these facts it is abundantly clear
that the court having the necessary jurisdiction in terms of s 1 of PAJA is the court in
Gauteng.

[33] Therefore, there could be no basis upon which this Court found jurisdiction
over this dispute. Indeed, this court lacked the necessary jurisdiction.

[34] Even if I am wrong on the question of jurisdiction, I am still of the view that the
applicant failed dismally to make out a case for condonation for the late fil ing of its
review application as envisaged in s 9 of PAJA. Section 7(1) of PAJA provides that

‘any proceedings for judicial review in terms of s 6(1) must be instituted
without unreasonable delay and not later than 180 days after the date –
(a) subject to subsec (2)(c), on which any proceedings instituted in terms of
internal remedies as contemplated in subsec (2)(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of the action and the
reasons for it or might reasonably have been expected to have become aware
of the action and the reasons.

[35] The applicant issued its application for review of the decision to disqualify it on
23 May 2024. As foreshadowed above, on 22 May 2023, the applicant was informed
of the decision to disqualify it from the tender. The reasons for the disqualification

of the decision to disqualify it from the tender. The reasons for the disqualification
were furnished on 3 June 2023. The review application was issued in about twelve
(12) months after the applicant wa s advised of the decision to eliminate it from the
bid by the Department, and some eleven (11) months after the applicant was
furnished with the reasons for its elimination.

[36] The review application was preceded by two other applications that served
before the North Gauteng Division of the High Court, Pretoria. The first application
was on an urgent basis, it sought to prevent the third respondent from commencing
with the work at the Clanwilliam Dam. After it was struck off the roll for lack of
urgency, the applicant pursued the another application, seeking to interdict the
operations at the Clanwilliam Dam, pending the finalisation of its review litigation
process. This second application was dismissed on 11 December 2024.

[37] The applicant submitte d that its failure to institute the review proceedings
within the prescribed time period was occasioned by various factors. Such factors
included that, after receipt of the reasons for their disqualification from the tender on
3 June 2023, it also engaged in correspondence with the Department in relation to its
elimination. The Department furnished applicant with the complete record of the
tender on 11 September 2024. Further that, due to the fact that the applicant was an
engineering company, it was not ne cessarily aware of the legal requirement to issue
the review application within a prescribed time period. According to the applicant,
and on the advice of Tiefenthaler Attorneys, it was also under the mistaken belief
that the prescribed period of 180 days was to start running upon receipt of the
outcome of the internal investigation that was conducted by the Department.15

[38] Mr Grobler SC for the applicant also submitted that, at some point, the
applicant was under the impression that the prescribed tim eframe for the initiation of
the review proceedings would start running after the litigation which was unfolding
before the Gauteng Division of the High Court had completed its course. The
applicant submitted that if due regard was given to its cause of co mplaint, it was in
the interests of justice for the merits of the review application to be decided.

the interests of justice for the merits of the review application to be decided.
According to them, the delay was 180 days and it was not exorbitant.16


15 Founding affidavit , para 19
16 Founding affidavit , para 23

[39] Relying on Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd,17
the applicant argued that, when assessing delay the court had to consider if it was
unreasonable. Further that the court should be guided by South African National
Roads Agency Ltd v Cape Town City ,18 to be able to fairly conclude if it was in the
interests of justice to condone a delay that was longer than 180 days. On the
application of these techniques, the applicant argued that it had good prospects of
success when regard was had to their cause of complaint against the awarding of
the tender to the third respondent and that the interests of justice permitted
condonation of their lateness.19

[40] The respondents, on the other hand, highlighted that when the applicant’s
urgent application failed befo re the Gauteng High Court, the court warned that the
correct process for it would have been to pursue a review application. However, the
applicant made a different selection. The respondents also pointed out that the work
at the Clanwilliam Dam had commenc ed and is at an advanced stage. Implying that
any interference with the ongoing operations would be disastrous in many respects,
and blamed that on the sluggish conduct of the applicant’s litigation, which according
to them was inexcusable. They submitted that the delay in instituting proceedings
was deeply prejudicial with huge safety to the communities in close proximity to the
dam and financial loss risks to the fiscus.20

Discussion of Condonation

[41] Starting with the classicus legal principle that ignoratia non excusta or
ingnoratia legis neminem excusat, it is unavoidable to agree with the respondents’
assertion that this excuse is unconvincing. Let alone that it does not qualify as an
explanation for delay in the given circums tances. Therefore, the excuse that t heir
erstwhile counsel gave them bad advice cannot hold.


17 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd (CCT 91/17) [2019] zacc 14 (16

April 2019) ; [2019] ZACC 15
18 The South African National Road Agency v City of Cape Town 2016 (4) All SA 332; 2017 (1) SA
468 (SCA)
19 Applicant’s heads of arguments, Paras 21-26
20 First and second respondents’ heads of arguments , paras 30-32

[42] Noteworthy, the operation at Clanwilliam Dam commenced in August 2023, as
at 10 October 2024, 16% of the work had been done and up to R15 mil had been
spent.21 At the hearing of this application, up to 25% of the work at the dam had
been completed. 22 From this, it seems that there has been significant progress in
execution of the impugned tender. As the applicant acknowledged this reality, it
resiled itself to the potential complications in regard to the work already performed
by the third respondent in terms of the service level agreement. But, with the same
breath insisted that such should be resolved in terms of the contractual terms
between the respondents.

[43] As discussed in paragraph 14 of this judgment, o n 9 October 2023, when the
Gauteng High Court handed down its reasons t o the judgment on the urgent
application for an interim interdict, it remarked that the applicant had known since 22
May 2023 that the applicant’s bid had been unsuccessful. The court also stated that
the applicant could have launched a review application at the time but chose to
engage with the first respondent in correspondence. The court also found that the
applicant’s application was not urgent, as the applicant had since 22 May 2023 that
its bid for the tender was unsuccessful and had not acted immediately by either
approaching the Court for the interim interdict at the time or launchi ng a review
application on an urgent basis.23

[44] These remarks were restated by the Gauteng High Court on 11 December
2024, when it handed down its judgment and dismissing the interim interdict
application that was at the instance of the applicant. The court further said that,
‘Instead of launching the review application as it should have done, Ingerop
launched an urgent application.’ 24

[45] Notwithstanding these compelling remarks of the court on 9 October 2023, it
still took the applicant until 13 M ay 2024 to launch this review application. Even if it

still took the applicant until 13 M ay 2024 to launch this review application. Even if it
could be accepted for once that the applicant, as an engineering firm, was ignorant

21 First and second respondents’ answering affidavit, dated 10 October 2024
22 Uniform Rule 6(5) Affidavit of Dr. Le Grange
23 Ingerop South Africa (PTY) LTD v Department of Water and Sanitation and Others (Case number
82093/2023) GHC, 9 October 2023, Paras 11-12
24 Ingerop South Africa (PTY) LTD v Department of Water and Sanitation and Others (Case number
82093/2023) GHC, 11 December 2024, Para 7

about the applicable legal timeframes, it could not provide a plausible explanation for
the delay after the court explicitly directed it to rather pursue a review application, as
early as 9 October 2023.

[46] In my respectful view, the applicant failed to make out a case for condonation
for the late filing of its application. This conclusion is fortified by th e following factors,
namely: (a) the applicant was unable to provide a reasonable explanation for its
failure to issue the review application within the time period set out in s 7(1) of PAJA;
(b) the applicant did not demonstrate that it was entitled to th e extension of the
prescribed timeframe in terms of s 7(2) of PAJA. (c) the applicant’s excuse that their
delay was occasioned by bad legal advice is not a competent explanation to justify
the condonation; (d) failure of the applicant to heed the advice of the court when they
were furnished with reasons why the urgent application was struck off the roll was
fatal to the applicant’s bid to have the condonation granted.

Conclusion

[47] In light of the findings and conclusions above, the question of jurisdiction
became dispositive in this matter . Consequently, this court stood precluded from
traversing the remainder of preliminary issues raised; the merits of the review
application, and the draft order that was proposed by the applicant at the time of
hearing this application.

Costs

[48] The legal representatives of all the parties were in agreement on the course of
how costs should be determined. This was in that there was no reason fo r a
departure from the norm that costs should follow the results, with which I agree.

Order

1. This court lacks jurisdiction to hear the review application.
2. The applicant’s application to review the decision to award a tender to the
third respondent is hereby dismissed.

3. The applicant is ordered to pay the costs of this application on a party and
party scale, including the cost of two counsel where so employed, on Scale C.


______________________
Sipunzi AJ
Acting Judge of the High Court

I agree

And it is so ordered.

_______________________
Lekhuleni J
Judge of the High Court


Appearances

For the Applicant: Adv. Grobler SC.
Instructed by: York Attorneys INC.

For the first and second respondents:
Instructed by: The State Attorney, Johannesburg

For the third respondent: Weavind & Weavind Inc. Pretoria