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

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG.

Case Number: 2023-027220
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED

DATE: 25 July 2025

In the matter between:

JOHANNESBURG SOCIAL HOUSING COMPANY LTD Applicant

And

QUICKPROP SYSTEMS PTY LTD AND OTHERS First Respondent

SAMUKELO MATTHEW MFANELO NKOSI Second Respondent

COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION OF SOUTH AFRICA Third Respondent


JUDGMENT


Noko J

2

Introduction

[1] The applicant launched an application in terms of section 1(c) of the
Constitution to review and set aside the award of the bid to the first respondent The
applicant seeks a further order directing the first and second respondents jointly and
severally to pay the applicant an amount of R6 735 311.56 paid by the applicant in
settlement of the invoices issued by the first respondent.

Parties

[2] The applicant is Johannesburg Social Housing Company Limited
(“JOSHCO”), a juristic entity incorporated in terms of the company laws of the
Republic of South Africa, with principal place of administration at 6[ …] J[…] Street,
Braamfontein, Johannesburg, Gauteng Province.

[3] The first respondent is Quickprop Systems (Pty) Ltd , a jur istic entity
incorporated in terms of the company laws of the Republic of South Africa , with
principal place of business at 1[ …] W[…] Street, Sandown, Sandton, Gauteng
Province.

[4] The Second Respondent is Samukelo Matthew Mfanelo Nkosi , an adult
person and a director of the f irst respondent carrying out his duties at 1[…] W[…]
Street, Sandown, Sandton, Gauteng Province.

[5] The Third Respondent is Companies & Intellectual Property Commission of
South Africa (“ CIPC”), with its administration address at 7[ …] M[…] Street,
Sunnyside, Pretoria, Gauteng Province. The applicant seeks no order against the
third respondent, and the latter is not participating in this lis.

Background

[6] The applicant invited bids on 23 November 2020 to develop and provide a
property management system and mobile application solution (“project”) for 60

3

months. The first respondent’s bid was successful, and the bid was awarded on 12
April 2021. The applicant and first respondent concluded a service level agreement
on 17 May 2021.

[7] The agreed total costs of the project , including VAT, was R12 815 140.00.
The first respondent commenced its work and submitted several invoices from 24
June 2021. The applicant settled some of the invoices to the tune of R6 735 311.561
and stopped further payments allegedly as the first respondent breached the service
level agreement (“agreement") as it failed to deliver per the agreement.

[8] The applicant then investigated the award of the tender to the first respondent
and established that the first respondent had made misrepresentations and
falsehoods in its bid, and then launched these proceedings seeking to review and set
aside the decision taken to award the tender to the first respondent. The applicant is
further seeking, as a just and equitable remedy , an order to restore the status quo
ante and the first respondent to refund the monies paid to the first respondent. A s
stated above, the applicant seeks an order that the second respondent be jointly and
severally liable with the first respondent in terms of section 20(9) of the Companies
Act
2 to pay the refund. Both first and second respondents are opposing the lis and
are referred to jointly as respondents.

Points in limine
Condonation

[9] The respondents contend that the tender was awarded on 12 April 2021, and
the applicant, armed with all the necessary information, decided only after two years
to launch these proceedings. Further that the applicant has failed to apply for
condonation for the late challenge, and to this end , the application should be
dismissed. The respondents acknowledged that the court is endowed with the
discretion to overlook the delay, but contend that since the applicant has failed to lay

1 As will be shown below the first respondent contends that some invoices were not settled.

1 As will be shown below the first respondent contends that some invoices were not settled.
2 Act 71 of 2008.

4

any factual basis for the late launching of the proceedings , the court is precluded
from exercising any discretion to overlook the lateness thereof.

[10] In retort, the applicant referred to Gijima 3 where the court held that in matters
similar to this lis, the court may not be bound to have regard to the condonation
application and proceed to adjudicate the merits of the application before it. In any
event, the respondents have failed to allege and detail the nature of the prejudice
they would suffer if the condonation were refused.

[11] The applicant further contended that the respondent has served its answering
affidavit a month late without launching an application for the condonation of the late
filing of the affidavit. Ordinarily, without an application for condonation, the said
answering affidavit would not have been considered together with issues raised
therein, including the respondents’ point in limine of the applicant’s failure to apply
for condonation.

[12] I had regard to the judgment referred by the applicant’s counsel and noted
that SITA contended in Gijima that if the court is approached based on the principle
of legality … no explanation for the delay was needed.’
4 That notwithstanding, the
court held that the applicant had a duty to ensure that such a challenge is launched
within a reasonable time, and the court has the discretion to overlook the delay. In
Gijima, the delay was over 22 months, and since there was no explanation advanced
the discretion could not be exercised in a vacuum , and the same could therefore not
be granted. In other instances, the delay may be longer but condonable, as was
stated in Swifambo Rail Leasing, 5 that in view of the fact that the extent of the
malfeasance was concealed by the Board of PRASA , the delay of three years was
overlooked. The court also considered the interest of justice and public interest in
overlooking the delay. It was also held in Simeka ,6 that, due to the enormity of the

overlooking the delay. It was also held in Simeka ,6 that, due to the enormity of the

3 State Information Technology Agency SOC Limited and Others v Gijima Holdings (Pty) Ltd
(CCT254/16) [2017] ZACC 40; 2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC) (14 November 2017).
4 Gijima at para [13].
5 Swifambo Rail Leasing (Pty) Ltd v Passenger Rail Agency of South Africa 2020 (1) SA 76 (SCA)
(Swifambo).
6 Minister of International Relations and Co- operation and Others v Simeka Group (Pty) Ltd and
Others (610/2021) [2023] ZASCA 98 [2023] 3 All SA 323 (SCA) (14 June 2023).

5

task and preparation, and drafting of the papers , which was time -consuming, the
delay of 29 months was overlooked.

[1] The court may, although there is an unreasonable delay, still declare, in terms
of section 172(1)(a) of the Constitution, that the state’s conduct is unlawful or find the
conduct inconsistent with the Constitution and invalid. This may then come in handy
in favour of the state where the explanation for the delay is not reasonable but
reprehensible.

[13] I had regard to the conduct of the parties , the nature of the matters I am
seized with , and the failure of the parties to indicate when the application should
have been launched, except to state that the tender was awarded on 12 April 2021.
It is noted, however, that the last payment made was in October 2022, and the
proceedings were launched five months
7 later on 23 March 2023. It is to be noted
that where tenders are awarded through unquestionable means , parties from both
sides would go the extra mile to conceal infractions which led to the award of the
tender, and to this end, being strict with timelines may unduly benefit parties from
illegal activities on the basis that the challenge was not launched urgently.

Authority
[14] The respondents contend that the authority of the deponent was brought into
question and has not been properly dealt with by the applicant. At some stage, the
deponent was appointed as the C OO, though not having first been appointed as a
director of the company.

[15] The applicant had, in retort, stated that the respondents seem to confuse the
question of authority as they served Rule 7(2) notice. The authority in question
should refer to the applicant as a party to a civil suit and not necessarily an individual
who deposed to an affidavit in support of the application underpinning t he launch of
the proceedings.


7 It is noted that PAJA requires launching of reviews within a period of 6 months.

6

[16] It is trite that, as it was previously held that it is unlikely for a firm of attorneys
to launch the legal proceedings on behalf of a party without proper authority , and the
court should therefore be loath to readily uphold the challenge under those
circumstances. The applicant has furnished the respondents with the resolutions to
substantiate their position, and despite some shortcomings , I am satisfied that the
attorneys have the necessary mandate to prosecute this application. To this end, I
find the challenge to be unsustainable.

Mootness
[17] The respondents argued that since the agreement has been terminated,
reviewing and setting aside the award has no practical effect. Though it is noted,
respondents contended that the C onstitutional Court stated that mootness is not a
bar and the Court retains discretion to hear the matter if it is in the interest of justice
to do so. In retort, it was brought to light that where the public purse is at risk , it is
often in the interest of justice that finality be sought where there is malfeasance.

[18] Ordinarily, the case becomes moot or academic when the case itself no
longer has a practical effect or affects the interest of the parties
8 and in such an
instance, the courts are reluctant to exert their resources to adjudicate over such
cases. It was stated by the Supreme Court of Appeal in Solidariteit9 that

“The general principle is that a matter is moot when a court’s judgment will
have no practical effect on the parties. This usually occurs where there is no
longer an existing or live controversy between the parties. A court should
refrain from making rulings on such matters, as the court’s decision will
merely amount to an advisory opinion on the identified legal questions, which
are abstract, academic or hypothetical and have no direct effect; one of the
reasons for that rule being that a court’s purpose is to adjudicate existing legal

reasons for that rule being that a court’s purpose is to adjudicate existing legal

8 J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514
(CC). See also Minister of Tourism v AfriForum NPC 2023 ZACC 7 CC at para 23, where the
Constitutional Court stated that ‘A case is moot when there is no longer a live dispute or controversy
between the parties which would be practically affected in one way or another by a court’s decision or
which would be resolved by a court’s decision. A case is also moot when a court’s decision would be
of academic interest only.’
9 Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional
Affairs [2023] ZASCA 35 (31 March 2023). Footnote not added.

7

disputes and its scarce resources should not be wasted away on abstract
questions of law. In President of the Republic of South Africa v Democratic
Alliance, the Constitutional Court cautioned that ‘courts should be loath to fulfil
an advisory role, particularly for the benefit of those who have dependable
advice abundantly available to them and in circumstances where no actual
purpose would be served by that decision, now’.
10

[19] Notwithstanding what is referred to above, mootness cannot be a bar for a
court to hear a case. In this regard, it was stated in Legal Aid South Africa
11
that: “Mootness is no bar to deciding an appeal if it is in the interest of justice to do
so. As this Court said in Van Wyk, relevant considerations are whether the order that
the Court may make will have any practical effect either on the parties or on others,
whether it is in the public interest for the court to exercise its discretion to resolve the
issues and whether the decision will benefit the larger public or achieve legal
certainty.”
12 Neither of the parties in this lis serving before me has advanced this
argument.

[20] I had regard to the contentions advanced by both parties and the nature of
issues served before me and conclude that , despite the alleged mootness , the
interest of justice warrants finality in this matter , which relates to the public purse, to
which the general public would appreciate the adjudication of the lis to finality.

Hearsay evidence.
[21] The respondents contend that the applicant sought the court to accept
hearsay evidence without laying a proper factual foundation for the court to assess
that the evidence so tendered falls within the province of the statutory regime as
contemplated in section 3 of the Law of Evidence Amendment Act.
13 In addition, the
argument continued, the decision reviewed is based on the decision of both B EC
and BAC, whose minutes were not availed to court to have regard thereto.

10 Id at para 12

and BAC, whose minutes were not availed to court to have regard thereto.

10 Id at para 12
11 Legal Aid South Africa v Magidiwana & Others 2015(6) SA 494 (CC).see also Independent
Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC).
12 Id at para 58.
13 Act 45 of 1988.

8


[22] The facts which underpin the challenge relate to the documents which were
submitted by the first respondent and not necessarily to a third party who should
have furnished a confirmatory affidavit to support a specific version. The basis of the
challenge is primarily based on the three letters of support and the competence or
expertise of the firs t respondent and its lead soft engineer export. The said
documents were allegedly submitted as required in terms of the conditions of the bid.
To this end, I find the point raised unsustainable.

Disputes of fact.
[23] The respondent contended that there are several disputes of fact which
should have been foreseen, and the application should therefore be dismissed with
costs. The first dispute relates to the invoices, the first invoice FA5.3, which was
rescinded on 16 July 2021, and proof thereof was attached. This invoice has been
referred to in the founding affidavit and appears to have been the invoice that
triggered the animosity between the parties. The applicant has failed to clarify this
aspect, and following Plascon-Evans principle, this would be decided in favour of the
respondents.

[24] The respondent further referred to two invoices, identified as FA5.12 to
FA5.16 were never paid and were replaced at the instance of Mr . Mathibe to be
consolidated and lump ed together. The applicant has failed to address this dispute
in the replying affidavit. It does not appear , however, that the respondent s dispute
that the amount of R6million was paid.

[25] The respondent contended further that the applicant has the system , which
was developed by the respondent and was deployed monthly by the first respondent.
The said system was never brought to life. The contention has not been replied to by
the applicant in the replying affidavit, and should therefore mean that the applicant is
indeed in possession of the said system. The respondent stated further that the

indeed in possession of the said system. The respondent stated further that the
relationship went well until the respondent w as forced to cede the contract to a third
unknown party, and the said cession, the first respondent stated , was unlawful and
unenforceable. It is not clear what ultimately transpired, and the first respondent

9

should accordingly be entitled to interdict the said cession and report associated
malfeasance, if any, to the relevant authorities.
[26] The respondent lastly argued that the applicant frustrated the process by
refusing to supply information on time, especially concerning the utilization of a third-
party system (PANDA DOC) in the software , and the applicant took more than a
month to respond. These breaches of the contract by the applicant made it
impossible for the first respondent to perform its obligations. The conclusion
concerning these points will be dealt with later in this judgment.

Merits
[27] The applicant contends that on a closer scrutiny of documents submitted by
the first respondent , the allocation of the points was not above board. There was
misrepresentation with regard to the experience of the first respondent, maintenance
and support , and the lead expert's experience. In its illustration, the applicant
provided the following schematic presentation of its case.

Criteria Weight Respondent’s
Score
Implementation Lead Experience 30.00 30.00
Bidder Accreditation 10.00 0.00
Bidder Experience 30.00 20.00
Maintenance and Support 30.00 20.00
TOTAL 100.00 70.00

[28] With regard to the bidder's experience, the allocation of points was based on
the evidence presented by the first respondent to demonstrate that the relevant
experience was acquired. In this regard, the applicant submitted three letters of
support, which confirm that the first respondent has implemented a similar project.
The first respondent was accordingly allocated 20 points based on the said letters .
The applicant contends that, given the fact that the first respondent was incorporated
only ten months before the bid, the said reference letters were considered
suspicious. To this end, the respondents were challenged to prove the contrary.

10

[29] The respondents in retort contended that the letters annexed to the founding
affidavit allegedly submitted in support as evidence of experience were not submitted
by the first respondent and are unknown. Further that the application should be
found wanting as it seeks to set aside the decision of the BAC but has failed to
submit to the court the minutes of the said committee , which could have presented
the basis for having awarded the tender despite the absence of the said reference
letters. Though the respondent seems to concede that it was registered in 2019, but
contends that it had 1 year and 10 months as of 23 November 2023.

[30] The applicant in reply contends that the allocation of 20 points was inaccurate
if the respondent disputes that the letters of support were submitted by the first
respondent. without such evidence, the allocation should have been zero. In the
premises, the first respondent’s bid would not have passed the functionality state
and would have been disqualified.

[31] The applicant contended further that the first respondent's experience on
maintenance and support was also backed up by the letters referred to above, for
which an allocation of 20 points was made. Since the first respondent disavows
knowledge of those letters , it follows that there was no evidence submitted to
demonstrate that the first respondent had the requisite experience in maintenance
and support. The first respondent would not have received any points, and the
allocation would have been zero.

[32] The third point of challenge and allocation of points relates to the lead expert
of the first respondent. The bid condition allocated points based on the years of
experience of the lead expert of the bidder. First, the applicant argues that Mr PS
Khanyile, who is alleged to have been a lead expert , was not at the time of
submission of the bid in the employ of the first respondent. Secondly, the said lead

submission of the bid in the employ of the first respondent. Secondly, the said lead
expert only obtained his degree in December 2019 and could not have qualified as
an expert, and his particulars are not listed on the roll of software engineers kept by
the Engineering Council of South Africa. In the premises, the first respondent should
not have claimed to have 8 years’ experience to warrant the allocation of 20 points.
To this end, the bid contained falsehoods.

11


[33] The respondents in retort submitted that there is no requirement that an
expert should have been in the employ of a bidder or its director or shareholder .
Further, that ordinarily such experts are not attached to a specific entity.
Furthermore, the counsel for respondents continued, the applicant confuses
experience with the qualifications and should have had regard to the experience of
the expert and not necessarily his qualifications.

[34] In the premises, counsel argued, the award was vitiated by misrepresentation
of fact and material error of fact and therefore unlawful and illegal , susceptible to
review under section 1 (c) of the Constitution.

Remedy or relief

[35] Since the first respondent perpetrated the unlawful conduct alluded to above,
the first respondent cannot be rewarded and should be denied the benefits from the
contract awarded illegally , and as such, the status quo ante should be restored. In
the same breath, the applicant should not benefit from the services provided under
the tender awarded.

[36] The relief sought above is predicated on the argument that the applicant has
not performed in terms of the contract , which still had more than three years
remaining, and the maintenance component of the contract, forming a significant
portion of the contract price, having not commenced. The applicant has in turn,
tendered to return to the extent that it is possible.

[37] The first respondent contended that due to the passage of time, it would be
unduly prejudicial for such an order to be made. In any event , the first respondent
has executed the mandate as per the tender requirements , and the system so
designed could be produced for a demonstration to the court if need be.

Section 20(9) of the Companies Act

12

[38] Counsel argued further that the second respondent was the brain behind the
misrepresentation perpetrated as alluded to above, and to this end, his conduct
makes him to be personally liable following the provisions of section 20 of the
Companies Act.

[39] The second respondent, in turn, contended that the applicant has not properly
formulated the claim following section 20(9) of the Companies Act and submitted that
the same must be dismissed with costs.

Issues

[40] The issues for determination are (1) whether the applicant made out a case
for the review and setting aside of the tender awarded to the respondent and (2)
whether the second respondent should be held jointly and severally liable for the
amount paid pursuant to the tainted tender awarded to the first respondent.

Legal principles and analysis.

[41] The respondent is aggrieved by the approach advanced by the applicant i n
pursuing its relief in terms of review rather than recourse to the provisions of the
Service Level Agreement. This contention is not supported by any authority that
where there are several options available to a party, such a party is restricted to one,
such that a party may not be entitled to aim for a bigger fish. To this end, this
contention is unsustainable.

[42] The contention that the applicant failed to avail the whole record is also
unsustainable, as the applicant pinned its case on a specific aspect of the bids and
the scoring. The question is whether the points were allocated properly or not. The
respondent is unable to gainsay the submissions that the point allocated in respect
of the bidders’ experience was inaccurate, as the supporting letter could not have
validly claimed that a ten- month company has provided a similar service over 5
years. The same argument also applies to the experience relating to the
maintenance and support. The points awarded would have been based on

13

misinformation or misrepresentation, as alluded to by the applicant alternatively ,
based on lack of supporting references, as stated by the respondent. The contention
that the minutes of the BEC or BAC may have explained non- compliance with the
clear requirements would make the position worse for the respondent to have been
awarded the bid, having been assessed by different evaluation criterion. What I find
more confounding is the respondents’ unwavering contention that it was not a
requirement that the lead expert needs to be employed by the bidder. If this can be
countenanced, then shelf or shell companies would be awarded tenders and only
thereafter employ individuals to execute the work required. This will thwart the very
object of the tender system , which requires that bidder s with the appropriate
expertise should be awarded the bid.

[43] The contention raised that there are disputes of fact is directly linked to the
service level agreement, which is not the crux of the applicant’s case. To the extent
that such disputes relate to payment , they are sustainable and would impact the
claim for the refund. Noting that the applicant has tendered to return whatever it may
have benefited, it would be impossible to conclude that the total amount paid should
be refunded. It is noted from the respondent that the system was delivered to the
applicant, which was not categorically denied; it becomes important that proper
valuation of the services and or solutions provided be conducted so that a precise
amount refundable can be determined.

[44] To this end, the decision to award the tender is reviewed and declared
constitutionally invalid and set aside. If not, I may find myself giving legal sanction to
the very evil which section 217 of the Constitution and all other procurement -related
prescripts seek to proscribe.

Just and equitable remedy.
[45] Where the contactor was not complicit or was unaware of the infractions , then

[45] Where the contactor was not complicit or was unaware of the infractions , then
the remedy would be impacted in contrast to instances where the service provider
was not an active beneficiary of the infractions.

14

[46] The constitution provides in section 172(1)(a) that any conduct found to be
inconsistent with it should be declared invalid and the contract falls to be declared as
such. Section 172(1)(b) , on the other hand, gives the court wide remedial powers.
The court is empowered to make a just and equitable remedy. So wide is that power
that it is bounded only by considerations of justice and equity. In other instances, the
court may, notwithstanding findings of irregularity does not disgorge the benefit from
the service provider or even unduly benefit the applicant.

[47] Regarding the claim for personal liability in respect of the second respondent,
section 20(9) of the Companies Act read with section 73 provides relief to a party
who suffered a loss as a result of a director having conducted himself or herself
unconscionably. It is a statutory provision for the common law of piercing a corporate
veil.
14 It was held in Bellini v Paulsen and Another [2013] 2 All SA 26 (WCC) at para
19.23 that “This is a classic case of corporate identity being used as the alter ego of
an individual, t he first defendant. I find that this case demands piercing of the
corporate veil. The second respondent fails to raise any good defence to resist the
claim for the piercing of the corporate veil, except to state that the case has not been
properly formulated for a claim in terms of section 20(9) of the Companies Act.

[48] The bare denial that the three letters of support , which, according to the
applicant, were submitted in support of the bid to earn points , is insufficient. The
second respondent could have at least submitted the reference that he submitted to
get points for the bid to be successful. It is not denied that he populated and
submitted the bid to the applicant. it can be safely concluded that he intentionally or
recklessly submitted the false supporting documents for the first respondent to
qualify for the bid. To this end, piercing the corporate veil is justifiable.

Conclusion

qualify for the bid. To this end, piercing the corporate veil is justifiable.

Conclusion
[49] I therefore conclude that the appointment of the respondent was not in
accordance with the constitutional prescripts and or relevant regulatory framework. I

14 See Kolisang v Alegrand General Dealers and Auctione ers and Another (31301/2020) [2022]
ZAGPJHB 431.

15

am enjoined by section 172(1)(a) of the Constitution to declare any law or conduct
which is inconsistent with the Constitution invalid to the extent of its inconsistency.

[50] The dispute which was raised in respect of the invoices was not gainsaid by
the applicant , and the claim relative thereto would, subject to the order below, be
unsuccessful. Evidence presented before me constrains me to come to a finality as
to what the respondent needs to pay back and what the applicant needs to restore to
the respondent. It is therefore apt that this issue be referred to a third party to
evaluate the work done and determine the amount to be refunded, if any.

Costs
[51] The costs would follow the results.

Order.
[52] In the circumstances, I make the following order:
1. The decision to award the bid under ref 002/2020 to the first
respondent is declared unconstitutional, and is reviewed, and set aside.

2. It is declared that the second respondent is jointly and severally liable
for any payment which may be due to the applicant by the first respondent.

3. The respondents are ordered to pay jointly and several ly, the one
paying the other being absolved, the costs on scale B , including costs of
counsel.

4. In accordance compliance with the provisions of section 172(1)(b) I find
that it would be just and equitable that a valuation of the work done by the
respondent/s (if any) be made by a third party who may be appointed jointly
by both the Applicant and the Respondents within 30 days failing which a
person nominated by the Engineering Council of South Africa whose fees
shall be jointly paid the parties.

M V Noko

16

Judge of the High Court

DISCLAMER: This judgment is handed down electronically by circulation to the
Parties /their legal representatives by email and by uploading it to the electronic file
of this matter on Case Lines. The date for hand-down is deemed to be 24 July 2025.

Date:
Hearing: 6 February 2025.
Judgment: 24 July 2025.

Appearances:
For the applicant: ME Manala, instructed by Mncedisi Ndlovu &
Sedumedi Attorneys

For the First and Second Respondents: HP Wessels, instructed by Van der Merwe
&
Associates.