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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: A92121/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Reserved 27 May 2025
Delivered 11 August 2025
In the matter between:
PHOPHI TRAVEL TOUR AND PROJECT APPELLANT
And
SOUTH AFRICAN BIODIVERSITY INSTITUTE RESPONDENT
Disclaimer: This Order is made an Order of Court by the Judges whose names are
reflected herein, duly stamped by the Registrar of the Court and is submitted
electronically to the Parties/their legal representatives by email. This Order is
further uploaded to the electronic file of this matter on CaseLines by the Judge or
his/her Secretary/Registrar. The date of this Order is deemed to be July 2025.
JUDGMENT
Nicholson AJ
Introduction
[1] This is an appeal against both the judgment and the costs order handed
down by the Honourable Magistrate T Truter in the above matter on 10 July,
2024, in the District Magistrate’s Court of Pretoria, in terms of which the
Court granted absolution from the instance at the end of the hearing and
ordered the Appellant to bear the costs of suit.
The parties
[2] The Appellant is Phophi Travel Tour and Project, (“Phophi”, “Appellant”, or
“Plaintiff”).
[3] The Respondent is the South African National Biodiversity Institute
(“SANBI”, “Respondent”, or “Defendant”), a state-owned entity.
Background
[4] The Appellant has appealed the judgment of Honourable Magistrate T Truter
(“Magistrate Truter”) from the Court a quo on both the merits and on the
costs award.
[5] The Respondent opposes the appeal.
[6] Judgment in the Court a quo was granted on 10 July 2024 by the
Honourable Magistrate Truter, and the Notice of Appeal was delivered on 15
August 2024.
[7] It was common cause between the parties in the matter that:
[7.1] SANBI issued a Request for Quotation, RFQ0002608 (“RFQ”) on 19
January 2022, requesting potential service providers to provide
quotations for the supply of three line-items, one of which was, “10 I25
Pop Up (12 per box)”.1
[7.2] Phophi submitted an offer, in the form of a quotation, in accordance
with the RFQ.2
[7.3] In the evaluation of quotations submitted by potential service
providers, Phophi’s pricing was the best overall and its quotation was
accepted by SANBI, and Phophi was appointed to provide the goods.
1 CaseLines, 007-201 to 007-202.
2 CaseLines, 007-92.
[7.4] On 16 February 2022, SANBI issued a Purchase Order, P[...] (“PO”)
to Phophi and allocated the funds to pay the Appellant on delivery of
the goods.
[7.5] The Appellant was required to source the goods to be supplied at its
own cost and to deliver same to the Respondent.
[7.6] The Appellant delivered fully on line -items one and three but, it
delivered only 10 individual units of I25 Pop Ups (line -item two) on
17 March 2022, instead of 10 boxes, each containing 12 I25 Pop
Ups, for which it had allegedly quoted.
[7.7] After delivery of the goods by the Appellant on 17 March 2022, the
Respondent brought the defective delivery to the Appellant’s
attention by means of an e -mail addressed to the Appellant by Ms.
Felicity Poole.3
[8] On 5 December 2022, the Respondent demanded full performance in
accordance with the RFQ, and undertook to pay in full, on perfection of
performance.4
[9] In its demand for performance, the Respondent emphasised its position that
the quantities requested in the quotation were carefully and unambiguously
described by name and quantity, that the Appellant had not delivered in
accordance with the terms and conditions of the contract, and that the
payment of R 152 700.00 was not yet due and would only become due and
payable upon full compliance with the terms and conditions of the contract.5
[10] This offer to pay on delivery of all the goods was repeated in follow -up
correspondence with the Appellant’s attorneys on 12 December 2022.6
[11] On 7 December 2022, the Appellant proceeded to institute proceedings
against the Respondent for payment of the sum of R 152 700.00, being the
amount payable in respect of performance under the accepted quotation.7
3 CaseLines, 007-159.
4 CaseLines, 007-168, par 8.
5 CaseLines, 007-168 par 7.
6 CaseLines, 007-172-173.
[12] In its plea, the Respondent again averred that the Appellant had failed to
perform in terms of the agreement and, consequently, payment was not yet
due and would only become due and payable upon receipt of full delivery of
the goods per the agreement between the parties.8
The hearing before the Court a quo:
[13] The Appellant asserted in the Court a quo:
[13.1] That there had been an error on the part of the Appellant in
interpreting the quantity of line -item two in the quotation and it was
submitted that this was a bona fide mistake.9
[13.2] That the error was not fatal to the agreement to such an extent as to
warrant cancellation of the agreement, which is what the Appellant
asserted the Respondent sought.10
[13.3] That it was of the view that it should be allowed to remedy its bona
fide mistake. To compel performance otherwise, would amount to
requiring the Appellant to perform the impossible.11
[14] The Respondent contended that:
[14.1] The quotation received was, amongst others, for delivery of 120 I25
Pop-Ups to the value of R9200.
[14.2] The delivery of only 10 I25 Pop -Ups rendered delivery defective in
terms of the applicable General Conditions of Contract (GCC), a
copy of which was included in the trial bundle.12
[14.3] The GCC is a public document applicable to parties having dealings
with the government or state -owned-entities such as those between
the Appellant and the Respondent.
7 CaseLines, 007-6.
8 CaseLines, 007-31 – 32 pars 7 & 8.
9 CaseLines, 003-6, par 4.7.
10CaseLines, 003-6 par 4.8.
11CaseLines, 003 par 4.9.
12 CaseLines 007-132 to 143.
[14.4] It held a bona fide belief that a unit price in line-item two of the quotation
referred to a box and not a single Pop-Up and thus, 10 boxes ought to
have been delivered at the price of R9 200.00.
[14.5] It maintained the position that it could only consider paying the
Plaintiff on delivery of the balance of the Pop -Ups, i.e. a further 110
I25 Pop-Ups, without variation of the quoted amount of R9200.00.
And, finally,
[14.6] The incomplete delivery vitiates the agreement to such an extent that
the Respondent is absolved from paying for any items already
delivered unless and until performance is perfected.
The judgement of the Court a quo and reasons therefor
[15] The Court a quo noted that “[i]t is trite that the plaintiff must prove their
case on a balance of probabilities”13 and that the claim emanated from the
contentious delivery of the “I25 Pop Up (12 per box)” and the refusal of the
defendant to make payment in respect of any of the items quoted, including
those duly delivered, unless there is full delivery of all items in accordance
with the agreement;14
[16] It noted further, that there was “confusion” that arose concerning whether
the quotation submitted by the Appellant, based on the RFQ issued by the
Respondent, was for the delivery of 10 individual units or 10 boxes, that could
not be remedied if the parties remained steadfast with regards to their
viewpoints in this regard, which they did.15
[17] The Plaintiff contended that there was an obligation on the Defendant to
perform a vetting process where items quoted were not consistent with
market values and, as such, the Defendant should have been aware that the
Plaintiff’s quotation was only for 10 I25 Pop Ups and not 10 boxes.
13 CaseLines, 005-04 at 28.
14 CaseLines, 005-2 at 8.
15 CaseLines, 005-3 at 19.
[18] Defendant’s testimony was, however, that it was the practice to only vet a
quotation in circumstances where a bidder quotes a price higher than the
market value of an item, however, if the price quoted by a particular bidder is
less than the market value, this is of no concern as there could be a myriad
of reasons for the under-quotation.16
[19] The parties both testified as to their true belief on the meaning of the
quotation and the Court a quo found both parties credible. For this reason,
the court concluded that, if it were to accept the Respondent’s version, that
the quotation provided was for R 920.00 per box, with each box containing
12 units, this would negate the explanation provided by the Appellant.17
[20] The Court a quo was of the view that the parties did not perceive the quotation
submitted in the same light and, as a result, there was no meeting of the
minds. Consequently, it could not be concluded that any form of agreement
came into being, between the parties.
[21] Given that, in the Court a quo’s view, the versions as to the meaning of the
quotation were mutually destructive, it granted absolution from the instance
and awarded costs against the Appellant.
[22] The main issue before this Honourable Court is thus, whether the Court a
quo erred in arriving at its decision on the evidence that served before it.
Legal principles
[23] It is trite that consensus is the foundation of contract.18
[24] In relation to contracts of sale, this Court has held that there must be a
mutually communicated meeting of the minds of the contracting parties with
16 CaseLines, 005-03 at 21 to 24.
17 CaseLines, 005-6 at 12 to 13.
18 Cinema City (Pty) Ltd v Morgenstern Family Estates (Pty) Ltd and Others [1980]1All SA 30 (A);
Swart v Vosloo 1965 (1) SA 100 (A); Commissioner of Inland Revenue v Saner 1927 TPD 162.
the intention of contracting a sale for such an agreement to come into
existence.19
[25] In Steyn v LSA Motors Ltd 20 the Court stated that where the parties’
subjective perceptions and intentions differ with regards to a contract, “each
can only testify to its own state of mind and cannot directly challenge the
evidence of the other.21 Thus, if the Court is of the view that the testimony of
both parties is credible, it is competent for the Court to conclude that the minds
of the parties never met and there was thus a lack of consensus. In such a
situation, the outward appearance of agreement and the expressed intention
do not automatically result in contractual liability.
[26] The Court in the above matter,22 referring to the dictum of Blackburn J in Smith
v Hughes,23 indicated that the Court would also be required to assess whether
a reasonable man in the position of the offeree would have accepted the offer
in the belief it represented the true intention of the offeror.
Analysis
[27] The test for absolution to be granted by a court at the close of the Plaintiff’s
case, is authoritatively `set out in Claude Leon Lights (SA) Ltd v Daniel 24
and, Akoon v Kader ,25 the full bench of the High Court upheld, on appeal,
the decision of the Magistrate’s Court, to grant absolution from the instance
at the close of a civil trail when, having heard all the evidence, the
Magistrate was unable, on the evidence, to determine which party’s version
of the contract was the correct one. Thus, absolution remains the
appropriate outcome in circumstances where the evidence does not support
a particular set of probabilities.
19 Commissioner for Inland Revenue v Saner 1927 TPD 162.
20 1994 (1) SA 49 (A).
21 1994 (1) SA 49 (A) at par 19.
22 At par 25.
23 (1871) LR 6 QB 597 at 607
24 1976 (4) SA 403 (A) at 409 G - H.
25 1963 (2) SDA 664 (N).
[28] This view was also supported in National Employers’ General Insurance Co
Ltd v Jagers ,26 per Eksteen AJP, where a full bench of the High Court
upheld the decision of the Judge sitting in the High Court, that the Court a
quo, finding no reason for preferring the evidence adduced by either side as
more reliable, found that the Plaintiff had failed to discharge the onus that
rested on him.
[29] The current matter before this court can be distinguished from the above
matters in which absolution from the instance was granted, in that the
quotation submitted by the Appellant to the Respondent exactly mirrored the
wording of the RFQ.
[30] Despite having ample opportunity to query the meaning of line -item two with
the Respondent before submission of the quotation, the Appellant failed to
do so.
[31] It appears from the evidence that the Appellant needed to source all three of
the line-items for delivery in terms of the quotation, however, it only obtained
a quotation for line -item two from the manufacturer after it had been
awarded the contract, at which stage it became aware that it could not
perform as it had undertaken.
[32] Thus, as was the case in Smith v Hughes,27 the fact that the Appellant made
a mistake was entirely its own fault. It was not misled by the Respondent
and there was no mutual mistake. Thus, the agreement is valid.
[33] Furthermore, the Respondent, as the offeree, receiving a quotation that
mirrored the RFQ could not reasonably have detected or understood that
the Appellant was labouring under any confusion with regards to the quantity
of items required to be delivered.
26 1984 (4) SA 437 (E).
27 (1871) LR 6 QB 597.
[34] The Honourable Magistrate Truter found, despite Ms Ramabulana’s
concession that she, acting for the Appellant, made a mistake, that there
was no basis on which to find that either party’s version as to the meaning of
the quotation delivered by Phophi was more probable.28 In effect, the Court a
quo found that the probabilities as to the agreement that was concluded,
were evenly balanced.
[35] It was eminently competent for the Court, in the light of that finding, to issue
a judgment granting absolution from the instance, however, as appears
below, this Court differs from the view of the Court a quo as regards the
finding on the balance of probabilities in this matter.
[36] The Appellant stated it had made an error with regards to the quantity of I25
Pop-Ups to be delivered, which resulted in an under -quotation to the
Respondent on that line-item.
[37] This under -quotation was not detected by the Respondent who based its
award of the bid on the competitive pricing of the Appellant’s quotation with
regards to this line -item, given that its quotation on the other two line -items
was higher than one or more of the other bidders’ quotation on the same
items.29
[38] The Appellant seeks the Court’s intervention to allow her to remedy her error
and to require the Respondent to accept that the delivery of line -items one
and three, together with ten I25 Pop -Ups constitutes full performance in
terms of the quotation and entitles it to payment in full in terms of the
agreement.
[39] The Respondent has been unwavering in its view that it cannot make
payment on the agreement unless full delivery is made in compliance with
the accepted quotation. As a State -owned entity, it has strict procurement
processes and procedures in place that must be complied with before a
28 CaseLines 005-6 at 13.
29 CaseLines 008-64 at lines 20 to 24.
payment can be made. Variation of a quotation after the award of a bid is
not possible and thus, it remains steadfast in requiring full performance in
terms of the agreement before payment is made.
[40] While the Court a quo was fully within its rights to consider the issue of
absolution from the instance mero motu , it was, with respect, incorrect in
finding that there was dissensus between the parties that founded such a
finding of absolution from the instance in this case.
[41] The onus was on the Plaintiff/ Appellant to establish its case before the court
a quo on a balance of probabilities. Based on the evidence led, the Plaintiff/
Appellant failed to discharge the onus. Given there was no confusion with
regards to what exactly had to be delivered in terms of line items one and
three, and the quantities required in respect of those items, it seems unlikely
that the Appellant did not comprehend from the outset, that the Respondent
required a quotation for delivery of 10 boxes of I25 Pop Ups and not simply
10 such Pop-Ups.
[42] Furthermore, it is noted that the determining factor in the award of the
quotation was, in fact, the low price quoted on this line-item.
[43] It appears that the Appellant was intent on making delivery on the quotation
until it realised that the amount it had quoted in terms of line -item two was
hopelessly inadequate to cover the cost it would incur in securing the items
which were manufactured by a third party.
[44] It was only after the Appellant had obtained a quotation from its supplier on
this line-item, that it became aware of the cost per item and the fact that the
items did not come in boxes but as individual items.
[45] It appears from the above, that the Appellant possibly failed to properly cost
the quotation before submitting it and thus, found itself in the invidious
position of either having to honor the agreement at own cost, or accepting
that the agreement would have to be set aside and the goods already
delivered returned to it, with a possible action for damages accruing to the
Respondent.
[46] Although the appellant alleged that it would be impossible for it to perform
on the contract, 30 this is not the case, performance remains objectively
possible, although it would be expensive for the Appellant to perform as
agreed.
[47] It seems that, in order to avoid either of the two outcomes mentioned in par
[45] above, the Appellant sought the Court a quo ’s intervention to compel
the Respondent to make payment in full, despite the fact that the delivery
remained incomplete.
[48] The Appellant’s assertion that the Respondent should have vetted the
quotation and identified the under -quotation on line -item two was dealt with
in the evidence. 31 The Respondent testified that it vets quotations where
prices exceed the market price substantially but, not where the price quoted
is below the market price as this could be the case for any number of
reasons.
[49] In this instance, the under -quotation could have been an inducement to
award the quotation or a genuine error on the part of Appellant with regards
to the actual cost of the item, however, the Respondent cannot be faulted for
trying to achieve the best price for the required items.
[50] It can further, not be said, as Appellant asserts in its Heads of Argument,
that there is no prejudice or hardship for the Respondent in allowing the
Appellant to provide the additional 110 I25 Pop -Ups at a revised price. 32
Indeed, it would be prejudiced by having to pay a higher price for the goods
than was initially agreed and, this would potentially expose it to a risk of
legal challenges from unsuccessful bidders on the RFQ.
30 See par [13.3] above.
31 CaseLines, 005-03 at 21 to 24
32 Caselines, 002-6 par 4.10.
[52] The onus was always on the Appellant to carefully evaluate the cost of doing
the business before submitting the quotation, which clearly it did not do.
[53] The Respondent has not acted unreasonably or unfairly in refusing to make
payment prior to complete performance, as is required in terms of the
applicable GCC.
[54] Thus, clearly, it is my view that the version of the Respondent, as presented
before the court a quo, is more probable than the version put forward by the
Appellant. Consequently, the order of the court a quo granting absolution
from the instance on the basis of the evidence presented, amounted to a
misdirection on the part of the court.
[55] During the appeal hearing, the Respondent indicated a willingness to return
to the Appellant all goods already delivered in terms of the RQF. This should
be done.
[56] In light of the above, I propose the following order:
[56.1] The appeal is dismissed with costs on scale B.
[56.2] The Respondent must return to the Appellant all goods already
delivered to it in terms of the agreement within 30 days of date of this
judgement.
HEARD ON 27 MAY 2025
DELIVERED ON 11 August 2025
CMA NICHOLSON AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree and it is so ordered.
COLLIS J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Appearances
For the Appellant:
Mr MS Manganya
Dasishi Nthambeleni Inc
300 Witch-Hazel
Eco-Fusion Office Park
Phase 4, Block B
Centurion
Tel: (0120 323 4581
E-mail: admin3dninc.co.za
Ref: SM/DNINC/R36/CIV
For the Respondent:
Cheadle Thompson & Haysom Inc
15th Floor, Libridge
25 Ameshoff St, Braamfontein
Johannesburg
Tel: (011) 403 2765
E-mail: Molatelo@cth.co.za & Zimkhitha@cth.co.za
Ref: SAN81001/M Makhura/ Z Mbhekeni
c/o Savage Jooste Adams
141 Boshoff St
Nieuwe Mucklenuek
Pretoria
Tel: (012) 452 82 00
E-mail: francinap@savage.co.za