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
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case no: 7572/2022P
In the matter between:
SMEC SOUTH AFRICA (PTY) LTD Applicant
and
THE PREMIER OF KWAZULU-NATAL PROVINCE First Respondent
THE MEC FOR ECONOMIC DEVELOPMENT,
TOURISM AND ENVIRONMENTAL AFFAIRS
KWAZULU-NATAL PROVINCE Second Respondent
THE DEPARTMENT OF ECONOMIC
DEVELOPMENT, TOURISM AND ENVIRONMENTAL
AFFAIRS, KWAZULU-NATAL PROVINCE Third Respondent
THE CHAIRPERSON OF THE KWAZULU-NATAL
PROVINCIAL BID APPEALS TRIBUNAL Fourth Respondent
THE MEC FOR FINANCE, KWAZULU-NATAL Fifth Respondent
PROVINCE
2
HATCH AFRICA (PTY) LTD Sixth Respondent
ORDER
The following order is made:
(a) The applicant has the requisite locus standi to challenge its exclusion
from the tender process in respect of Tender Number Z[...].
(b) The application to review and set aside the applicant’s exclusion from the
tender process is dismissed.
(c) The application to declare that the tender process has lapsed, is invalid
and null and void is dismissed.
(d) The application to review and set aside the decision by the fourth
respondent to dismiss the applicant’s internal appeal and to recommend the
appointment of the sixth respondent is dismissed.
(e) The application to review and set aside the decision by the fifth
respondent to accept the recommendation by the fourth respondent is dismissed.
(f) The applicant is ordered to pay the costs of:
(i) The second, third, fourth and fifth respondents in respect of the
review application.
(ii) The costs of the urgent application dated 3 July 2020, limited to
those costs incurred by the opposing party in the urgent
application.
(iii) The partial costs of the first and second respondents in the
interlocutory application, which shall exclude the costs associated
with the applicant successfully obtaining the order of the items
listed in paragraph 36.1 of the court order dated 4 October 2023.
3
(g) The costs in paragraph (f) above shall be on scale C and shall include the
costs consequent upon the employment of senior counsel, where so employed.
JUDGMENT
SIWENDU J:
Introduction
[1] This application is one of many public procurement disputes increasingly
occupying the courts in recent years. The applicant, SMEC South Africa (Pty)
Ltd (SMEC), applied to review and set aside the award of Tender Number Z[...]
(the Tender) to the sixth respondent, Hatch Africa (Pty) Ltd (Hatch), as the
transaction advisor for the King Shaka International Airport Transport Link
Solution Project (KSIA project).
[2] The Tender was issued under the following circumstances: The provincial
government of KwaZulu-Natal, represented by the first respondent, the Premier
of KwaZulu -Natal Province (the Premier) , identified a need for an integrated
aerotropolis strategy to enhance regional connectivity. Th e strategy aims to
develop a transport network that connects King Shaka International Airport to
the cities of Durban, Pietermaritzburg, Richards Bay, and Port Shepstone. The
second respondent, the Member of the Executive Council for Economic
Development, Tourism, and Environmental Affairs, KwaZulu -Natal Province
(the MEC), was tasked with the procurement of the project , while oversight and
implementation were delegated to the third respondent, the Department of
Economic Development, Tourism, and Environmental Affairs, KwaZulu -Natal
Province (the Department).
4
[3] Given the scale of the KSIA project, it was decided to procure it through
a Public -Private Partnership (PPP). This procurement model is governed by
Treasury regulation 16, issued under the Public Finance Management Act 1 of
1999 (PFMA),1 read with the National Treasury PPP Manual, which stipulate
the framework for managing PPPs. Additionally, KwaZulu-Natal adheres to its
own Supply Chain Management Provincial Policy (SCM Policy and a Policy
Framework),2 which guides procurement and the implementation of PPPs at
provincial level. The standardised procurement cycle is segmented into a
feasibility study, which requires Treasury Approval (TA) I, the procurement
phases segmented into TA IIA and IIB and the contracting agreement , requiring
TA III.3
[4] The Department decided that it lacked the internal expertise to procure a
complex PPP on the scale envisioned and sought permission from the KwaZulu-
Natal Treasury (KZN Treasury) to appoint specialist consultants for this
purpose.4 On 6 April 2018, it advertised the Tender for the appointment of a
transaction advisor to assist it through out the PPP project procurement cycle. It
is common cause that the closing date for the tender was 3 July 2018. However,
the Department amended the terms of reference and extended the closing date to
27 July 2018, after holding a briefing meeting with interested parties on 3 May
2018. Nothing turns on this for the purpose of the review application.
1 Treasury Regulations, GN R225, GG 27388, 15 March 2005.
2 The KwaZulu- Natal Supply Chain Management Policy Framework dated 3 February 2006 and the Supply
Chain Management Policy dated February 2019 , read together with Practice Note Number: SCM -07 of 2006
devolves procurement requirements in National Treasury regulations 16A and Practice Notes into provincial
procurement.
3 See Treasury Regulation 16.
4 Treasury regulation 16.3.4 states that: ‘If an institution lacks the expertise to proceed with the procurement of a
PPP agreement, the accounting officer of the institution –
(a) must inform the relevant treasury accordingly; and
(b) if the relevant treasury so requests, must appoint a specialist consultant for this purpose.’
5
[5] SMEC, Hatch, Gibb (Pty) Ltd (Gibb), UWP Abelusi Ziphelele Allen &
Overy JV (UWP), RM Joint Venture (RM JV), Delta Built Environmental
Consultants (Delta), Ramgoolam (Pty) Ltd (Ramgoolam) and LDM Consulting
(Pty) Ltd (LDM) w ere amongst the eight bidders who r esponded to the
invitation to bid for the appointment as transaction advisor. The Tender was
evaluated in a two-stage envelope system: the first stage involved a technical
evaluation of the bids , referred to as the functionality assessment , and t he
second stage entailed the price evaluation.
[6] The bid evaluation process was conducted by the Bid Evaluation
Committee (BEC) , comprising of representatives from Dube Trade Port, the
Department of Transport, National Treasury, KZN Treasury, Prasa, Richards
Bay Industrial Development Zone, eThekwini Municipality and the Department,
amongst others . After compiling a shortlist of preferred bidders, it made
recommendations to appoint the preferred transaction advisor to the Bid
Adjudication Committee (BAC)5 for a decision.
[7] Hatch was selected as the preferred transaction advisor and the
recommendation was confirmed by the BAC. On 15 May 2020, the Department
published a notice awarding the Tender to Hatch. Dissatisfied with the award to
Hatch, SMEC sought to avail itself to the internal remedies in clause 19(2) of
the SCM P olicy Framework6 to appeal the award to the KwaZulu -Natal
Provincial Bid Appeals Tribunal (BAT). The BAT is an independent and
impartial body established under clause 18(1) of the SCM Policy Framework
and operates under the au spices of the fifth respondent, the Member of the
5 In terms of clause 9.2.3 of the SCM Policy dated February 2019 , the composition of the BAC is ‘cross-
functional’, with at least four members at senior level.
6 Clause 19(2) of the SCM Policy Framework dated 3 February 2006 states that ‘[t]he department or bidder
must, within five working days of receipt of the notification of an award, deliver written notification of an
intention to appeal’.
6
Executive Council for Finance, KwaZulu-Natal Province (MEC for Finance). In
this instance, the BAT was constituted by four independent professionals,
chaired by t he late Judge Levinsohn . The Chairman of the BAT is cited herein
as the fourth respondent.
[8] A dispute ensued a bout whether SMEC lodged the appeal within the
prescribed period. The key issue was the exact date on which SMEC was
notified of the award of the Te nder to Hatch. On 9 February 2022, SMEC
successfully obtained an order from Gani AJ to set aside the notification of the
award. The court ruled that the correct date of the notification was 3 June 2020 .
It confirmed that SMEC’s notice of appeal was lodged within the prescribed
period. This ruling paved the way for SMEC to proceed with an internal appeal
to the BAT.
[9] SMEC's grievance on appeal to the BAT was that the BAC incorrectly
rejected its bid. It claimed that it had met the technical evaluation threshold . It
should have been awarded the Tender, as its bid offer was the lowest price.
[10] Before the appeal to the BAT could be finalised , SMEC approached the
high court on 3 July 2020 for urgent relief to prevent the implementation of the
award or the implementation of the Tender, pending its internal appeal. The
project has been in a hiatus since. The terms of the court order by Chili J are
crucial to the relief SMEC now seeks in this review, and warrant a restating of
the relevant parts, namely that:
‘The First Respondent and/or the Second Respondent be interdicted and restrained from
proceeding with and/or implementing and/or giving effect to the outcome of the tender
adjudication process relation to Tender Number Z[...], pending the final determination of –
2.1 the application procedures that will be commenced by the Applicant relating to the
internal appeal procedures to be conducted in terms of the KwaZulu - Natal Supply
7
Chain Management Policy Framework and/or the KwaZulu Supply Chain
Management Policy, such application procedures to be commenced within 30 days of
[the sic] of this order; and
2.2 any review application relating to the award of Tender Number Z[...], to be
commenced by the Applicant after the conclusion of the abovementioned application
procedure and/ or outcome of any internal appeal procedures to be conducted in terms
of the KwaZulu - Natal Supply Chain Management Policy Framework and/or the
KwaZulu Supply Chain Management Policy, such review procedures to be
commenced within 30 days of date of such conclusion alternatively such outcome.
3. …
4. The costs of this application are reserved for decision by the court hearing the
application alternatively review proceedings.’
[11] On 14 April 2022, approximately two years after the award of the tender,
the BAT delivered its decision, rejecting SMEC's appeal. The BAT reasoned
that the BAC had thoroughly reviewed SMEC's price proposal and c orrectly
concluded that SMEC's ‘fixed price for the procurement phase ’ did not account
for negotiation fees with the preferred bidder. SMEC had ‘deliberately’
excluded these fees, as shown by the qualifications incorporated in its tender
document. Supporting the BAC's evaluation, the BAT found that by omitting a
significant portion of the price requirements and placing a three -month ceiling
on negotiations, SMEC’s bid was not, in fact, the lowest price.
[12] The MEC for Finance accepted the decision of the BAT and appointed
Hatch as the transaction advisor. SMEC, having failed in its bid to appeal,
launched this review on 14 June 2022.
Review grounds
[13] In its o riginal notice of motion of 14 June 2022, SMEC sought the
following relief:
8
‘1. That the decision of the Third Respondent to declare the Applicant’s bid as partially non -
responsive and to exclude the applicant from consideration for award of Tender Number
Z[...] issued by the Third Respondent be reviewed and set aside
2. That the decision of the Third Respondent to award Tender Number Z[...] to the Sixth
Respondent be reviewed and set aside.
3. That the decision of the Fifth Respondent to dismiss the Applicant’s appeal against its
exclusion from consideration and the award of the Tender Number Z[...] to the Sixth
Respondent be reviewed and set aside.
4. That the Third Respondent be directed to include the Applicant in the bidding process as a
responsive bidder and to evaluate and score [sic] Applicant’s bid in accordance with the
provisions of the relevant bid documents in considering the award of Tender Number Z[...].
5. That the First, Second and Third Respondents and Fifth Respondent be directed to pay the
costs of the urgent application and the costs of this review application, jointly and severally
with any other Respondent who may oppose the application.’
[14] SMEC raised several grounds challenging the decision made by the BEC.
It alleged that Hatch and Gibb successfully passed the functionality test, despite
both companies including exclusions in their offers. It is alleged that there was
irregular and unlawful conduct by the BEC, in that it:
‘6.3.1 unilaterally and subjectively adjusted the offers submitted by the applicant as well as
the Sixth Respondent to compensate for the failure of the Sixth Respondent to submit its offer
excluding VAT and disbursements (such adjustment was done subjectively by the BEC and
without being authorized to do so);
6.3.2 (again) resolved that an alternative percentage in respect of the prefeasibility cap of
15% as advertised, can be agreed during the negotiation process to follow, which is unlawful
and irregular as the BEC does not have the authority to vary and /or amend any of the tender
and irregular as the BEC does not have the authority to vary and /or amend any of the tender
specifications as any variation of the tender specifications as advertised by the BEC shall
render the evaluation process inter alia unfair and anti-competitive.’
[15] SMEC additionally alleged that the BEC’s recommendation to the BAC
showed that Hatch and Gibb scored the lowest points on price and preference. It
averred that:
9
‘…the exclusion by the Sixth Respondent of parallel negotiations during the procurement
stage as highlighted by the BEC during its meeting of 20 March 2019, simply disappeared as
the evaluation process progressed and was no longer considered by the BEC…’
[16] In sum, as of 14 June 2022, SMEC’s review was directed at:
(a) The decision to exclude it from the Tender;
(b) The ‘double standards’ allegedly applied by the BEC during the evaluation
process;
(c) The award of the tender to Hatch;
(d) The recommendation by the BAT to dismiss SMEC’s appeal;
(e) The acceptance of the recommendation of the BAT to dismiss the appeal by
the MEC for Finance; and
(f) The order directing SMEC’s bid to be included in the bidding process as a
responsive bid and to evaluate and score its bid based on the relevant bid
documents.
[17] On 12 December 2022, the MEC and the Department opposed the review
and raised two preliminary objections, namely:
(a) The non-joinder of other bidders (non-joinder point). The point made was
that the non -joinder of the other bidders , who have a material and substantial
interest in the outcome, is fatal to the review.
(b) SMEC’s lack of locus standi . On the score , the point made was that
SMEC’s interest is limited to the decision to exclude it from the Tender, and it
lacked locus standi to impugn the award of the Tender to Hatch , without first
having its disqualification set aside . I t also lacked the locus standi to review
hypothetical irregularities and illegalities, unless it could show that those had a
direct and external effect on its rights.
10
[18] In November 2023, SMEC amended its notice of motion , and now seeks
the following relief:
‘1. An order declaring that the tender process regarding Tender Number Z[...] issued by
the Third Respondent was unsuccessfully completed on 25 October 2018, and that all further
conduct in the evaluation of the bids and the award of the tender is invalid and null and void.
2. In the alternative to the foregoing –
2.1 an order declaring that the conduct of the Third Respondent in dealing with the tender
process regarding Tender Number Z[...] was unconstitutional and invalid.
2.2 an order reviewing and setting aside the decision of the Third Respondent to declare
the Applicant’s bid as partially non -responsive and to so exclude the Applicant from
consideration for the award of Tender Number Z[...].’
[19] At the hearing, Mr Wagener (for SMEC), confirmed that SMEC’s review
must be adjudicated based on the amended notice of motion. He submitted that
the amendment took effect retroactively and there has been no objection to it.
Notwithstanding the primary relief to declare the tender process null and void ,
SMEC confirmed that it did not abandon the other orders concerning its
exclusion, or the challenge of the award to Hatch . It persisted with the
mandamus to be included in the bidding process and to have its bid evaluated
according to the relevant bid documents.
[20] Until the amended relief, neither the MEC for Finance nor the BAT were
parties to the review proceedings. They opposed the review in February 2024.
The review hearing
[21] Both Ms Gabriel (for the MEC and the Department) and Mr Dickson (for
the MEC for Finance and the BAT) join issue that as an ‘own interest litigant’,
SMEC interest is limited to the decision to exclude it from the tender process. It
was contended that SMEC lacks the broad locus standi to vindicate public
interest law rights based on other irregularities or on the ground of
11
constitutional invalidity of the Tender. Ms Gabriel submitted that since SMEC
was lawfully excluded from the Tender, it cannot upset the award of the Tender
to Hatch.
[22] Added to the above, Mr Dickson contended that SMEC’s founding
affidavit is devoid of any averments of irregularities by the BAT . SMEC’s
complaint is directed at the decision by the BEC, which was finally adjudicated
on by the BAT. SMEC wholly failed to engage with that decision or pinpoint
any irregularities by the BAT ’s conclusion to recommend the award of the
Tender to Hatch.
[23] Mr Wagener, in response, clarified that SMEC did not seek to vindicate
any public interest or right. It was before the court as an ‘own interest’ litigant.
Given this, the parties agreed that as an anterior question, SMEC’s locus standi
is to be decided first.
Locus standi
[24] The difference in approach between Mr Wagener and Ms Gabriel centres
on two issues: The first issue is whether SMEC has locus standi, and if it is so
found, the ambit of what it may lawfully challenge. The divergen t views are
influenced by the variety of orders SMEC seeks to review. The second issue is
whether the court can decide the merits of SMEC’s review at all. This dispute
arises from a disjuncture in the interpretation of the decisions by the
Constitutional Court and the Supreme Court of Appeal (SCA) employed by the
parties.
[25] The milieu of the present review involves public procurement and a
public tender process. As Mr Wagener contended, what was at stake (by this I
12
understood to mean SMEC’s interest) is the right to take part in a tender process
that is fair , transparent, cost effective , and competitive, as entrenched in s 217
of the Constitution . This underscores SMEC’s right to take part in the tender
process and not to be unlawfully excluded.
[26] Ms Gabriel argued that SMEC’s locus standi is limited in scope ,
consequently, the merits of the review are confined to SMEC’s exclusion from
the Tender . The first decision relied upon is Giant Concert s CC v Rinaldo
Investments (Pty) Ltd and Others,7 where the Constitutional Court held that:
‘[33] … An own-interest litigant does not acquire standing from the invalidity of the
challenged decision or law, but from the effect it will have on his or her interests or potential
interests. He or she has standing to bring the challenge even if the decision or law is in fact
valid. But the interests that confer standing to bring the challenge, and the impact the decision
or law has on them, must be demonstrated.
[34] … an own-interest litigant may be denied standing even though the result could be that
an unlawful decision stands…
[35] … where a litigant acts solely in his or her own interest, there is no broad or unqualified
capacity to litigate against illegalities. Something more must be shown.’ (Own emphasis.)
[27] The second decision addressing locus standi and when the court may
enter the merits of the review , is Areva NP Incorporated in France v Eskom
Holdings SOC Ltd and Another .8 The Constitutional Court delivered a split
decision. The majority held that where a litigant fails to show it has standing, a
court should only enter the merits ‘in exceptional cases or where the public
interest really cries out for that ’.9 The minority judgment supported a
substantive justice approach to standing , as opposed to a ‘technical or strictly-
7 Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others [2012] ZACC 28 ; 2013 (3) BCLR 251 (CC)
(Giant Concerts).
(Giant Concerts).
8 Areva NP Incorporated in France v Eskom Holdings SOC Ltd and Another [2016] ZACC 51; 2017 (6) SA 621
(CC) (Areva).
9 Ibid para 41.
13
defined’ approach, in favour of an inquiry whether it would be in the interests of
justice to decide the merits.10
[28] The dicta in Giant Concerts and Areva, and clarity on the pathway for
determining the merits of the review , were considered by the SCA in Goldrush
Group (Pty) Ltd v North West Gambling Board and Others .11 The SCA in
Goldrush confirmed that something more is required, stating that ‘if own -
interest standing is lacking, that will determine the present matter without
entering the merits. This is because there is no averment, let alone any
indication, that fraud or gross irregularity attends on the conduct of the Board’.
[29] As Ms Gabirel submitted, the above decisions are not only binding on
this court, but they were followed by this division in Tupac Business
Enterprises CC v Chairperson : KwaZulu-Natal Gaming and Betting Board and
Others.12 It is material to note, however, that in Tupac, the applicant submitted a
tender which did not meet the bid requirements . At the hearing, it abandoned
the challenge of its disqualification but sought to pursue other grounds for
review. The court rejected the invitation to adjudicate those matters on the
ground of a lack of standing.
[30] In the present case, Mr Wagener argued that SMEC’s locus standi and the
scope for the review were wider than its exclusion . Its standing includes the
right to challenge the award of the Tender to Hatch . He s ubmitted that the
source of SMEC’s locus standi derives from two events and the starting point
was:
10 Ibid para 57.
11 Goldrush Group (Pty) Ltd v North West Gambling Board and Others [2022] ZASCA 164; 2023 (3) SA 487
(SCA) (Goldrush) para 15.
12 Tupac Business Enterprises CC v Chairperson: KwaZulu -Natal Gaming and Betting Board and Others
[2018] ZAKZPHC 63 (Tupac) paras 15-21.
14
(a) The alternative relief in paragraph 2.2 of the amended notice of motion
pertaining to SMEC’s exclusion from consideration of its bid on the ground that
it was partially non-responsive (the exclusion point); and
(b) The second event was from the revised primary relief in paragraph 1 of
the amended notice of motion , that the tender process was unsuccessfully
completed on 25 October 2018. It was contended that both events had an
adverse effect on SMEC’s rights and conferred on it locus standi to challenge
the tender process and the award to Hatch.
[31] The argument was that SMEC’s exclusion and the award of the Tender to
Hatch are connected because the exclusion took place with a view to awarding
the Tender to the only remaining successful bidder, Hatch. It was contended that
the foundation of SMEC’s complaint about the lawfulness of the tender process
involves an interaction between the way purported errors in SMEC’s bidding
documents were dealt with when contrasted with the way the difficulties in
Hatch documents were dealt with.
[32] Mr Wagener ascribed a different interpretation to the dictum in Giant
Concerts. He submitted that the point enunciated in the case is that:
‘…in determining Giant’s standing, we- must assume that its complaints about the lawfulness
of the transaction are correct. That is because in determining a litigant’s standing, a court
must, as a matter of logic, assume that the challenge the litigant seeks to bring is justified.’
[33] Mr Wagener’s counter argument was that , on a correct interpretation of
Giant Concert s, the court must assume that there is merit in all of SMEC’s
grounds for review. He submitted that the consequence of Giant Concerts
means that it would be incorrect for the court to investigate the merits and/or the
probabilities of the merits at this stage. Based on the authorities, the merits are
not what is at hand.
15
[34] He also called in the aid of the SCA’s decision in WDR Earthmoving
Enterprises and Another v Joe Gqabi District Municipality and Others ,13 to
buttress SMEC’s assertion of locus standi and the order nullifying the tender
process. In WDR Earthmoving, the court found that a decision that a tender was
non-responsive conferred the appellants with legal standing to challenge it. In
addition, the court approved the right to review and to have a determination that
a bid offer by a competitor was responsive set aside. The award of a tender was
ultimately set aside
[35] Ms Gabriel persisted with the view that SMEC’s exclusion was lawful,
and that the review can be disposed of on the merits of the exclusion alone. That
issue is dispositive of SMEC’s case.
[36] It seems to me that based on both arguments , even on the strength of
WDR Earthmoving, there is common cause that as a starting point, SMEC’s
exclusion from the tender process confers it with the requisite locus standi to
review its exclusion, although the parties disagreed on the consequences that
follow from that common cause fact. It is to those issues that I now turn.
Analysis
[37] Before addressing the respective submissions, a valuable indicator to the
meaning and approach to locus standi was recently rearticulated by the SCA in
Firm-O-Seal CC v Wynand Prinsloo & Van Eeden Inc and Another. 14 It
explained that:
13 WDR Earthmoving Enterprises and Another v Joe Gqabi District Municipality and Others [2018] ZASCA 72
(WDR Earthmoving).
14 Firm-O-Seal CC v Wynand Prinsloo & Van Eeden Inc and Another [2023] ZASCA 107; 2024 (6) SA 52
(SCA) (Firm-O-Seal) para 6.
16
‘Locus standi in iudicio is an access mechanism controlled by the court itself. Generally, the
requirements for locus standi are these: the plaintiff must have an adequate interest in the
subject-matter of the litigation, usually described as a direct interest in the relief sought; the
interest must not be too remote; the interest must be actual, not abstract or academic; and , it
must be a current interest and not a hypothetical one. Standing is thus not just a procedural
question, it is also a question of substance, concerning , as it does , the sufficiency of a
litigant's interest in the proceedings. The sufficiency of the interest depends on the particular
facts in any given situation. The real enquiry being whether the events constitute a wrong as
against the litigant.’ (Emphasis added and footnotes omitted.)
[38] The consequence of th e approach advanced on SMEC’s behalf is that
even though it is common cause that SMEC’s exclusion confers it with locus
standi to review its exclusion, the review of the merits of the exclusion should
be deferred for adjudication at a later stage.
[39] In my view, t he argument misconstrues and conflates the substantive
inquiry into SMEC’s legal standing with the ultimate determination of the
merits of the review. The misconstruction is based on a partial reading of Giant
Concerts,15 because the court makes it clear that:
‘The own-interest litigant must, therefore, demonstrate that his or her interests or potential
interests are directly affected by the unlawfulness sought to be impugned.’
[40] Accordingly, t he separation of the determination of the merits does not
absolve SMEC from the obligation to demonstrate an interest affected by
unlawfulness. As the SCA in Firm-O-Seal clarified, the demonstration of the
interest, referred to in Giant Concerts, forms part of the ‘substantive’ element of
the inquiry into locus standi.
15 Giant Concerts para 43.
17
[41] Since the review is premised on the Promotion of Administrative Justice
Act 3 of 2000 (PAJA), what is justiciable, using the parlance in s 1 of PAJA, is
a decision which ‘adversely affects the rights ’ and ‘which has a direct, external
legal effect ’. Put differently, t he framework in which the substantive scrutiny
into SMEC’s locus standi occurs, serves the purpose of establishing a
jurisdictional requirement or fact to ascertain whether a decision has been taken
which has an adverse effect on its rights – a prerequisite to asserting the right to
a review.
[42] On the arguments advanced , there is common cause that SMEC has the
requisite locus standi to challenge its exclusion from the Tender. Two questions
arise from this , namely whether the court should decide the merits of the
exclusion and the effects of the newly raised order nullifying the Tender, a
further point on which SMEG relies to support its locus standi. I have already
demonstrated above why the premise on which SMEC resists the adjudication
of the merits of its exclusion is misconceived.
[43] To the extent that Mr Wagener submitted that there are disputed facts and
denied that SMEC excluded the negotiation component in the third phase of its
bid offer, that dispute can hardly be the basis to defer a decision on the merits
once locus standi is conferred. SMEC was required to set out th e disputed facts
in its affidavits.16 The affidavits about the exclusion are before the court and the
grounds on which SMEC disputes the lawfulness of its exclusion were
ventilated during the hearing, so was the basis for seeking the nullification of
the Tender. Furthermore, the principles in Plascon-Evans17 apply.
16 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA)
para 13.
17 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
18
[44] Accordingly, i t would be untenable and incongruent to find that SMEC
has the requisite locus standi to challenge its exclusion , only to reserve the
determination of the merits of that exclusion for a later stage. As will be seen
later in the judgment, the reliance on WDR Earthmoving does not alter my
finding nor support the approach advanced by SMEC. A piecemeal adjudication
of disputes is eschewed by the courts , and there is no legal basis to do so in this
case. It is to the merits of the exclusion that I now turn.
Was SMEC unlawfully excluded from the tender process?
[45] The facts leading to SMEC’s exclusion emerge from the affidavits and
the argument advanced before the court. The se facts were the subject of the
internal appeal before the BAT . SMEC was amongst the f ive bidders (namely,
SMEC, Hatch, Gibb, UWP and RM JV) who scored above the 70%
functionality threshold, triggering the price evaluation.
[46] The BEC had queries regarding the bids submitted by all five bidders
who passed the functionality threshold. On 11 March 2019, it invited all five
bidders, including SMEC, to address and clarify the concerns that the BEC had
regarding their technical and financial proposal s, on condition that they do not
supplement their bids.
[47] While preparing for the presentation, the BEC found errors in the formula
it used to calculate points accruing to the bidders . It also omitted the weighting
of the scores . It enlisted the Department’s SCM Team and sought technical
support from the KZN Treasury to recalculate the scores to correct the
minimum score of 350 , representing the 70% functionality threshold, and the
maximum score of 500 articulated i n the terms of reference. The above facts
were recorded in the BEC minutes dated 7 March 2019.
19
[48] Based on the recalculation, only three bidders passed the functionality
test. SMEC scored 358 points, while Hatch scored 417 points and Gibb 351 .
Since SMEC passed the functionality test, it takes no issue with the
recalculation of the scores. It was not prejudiced. C onsequently, only three
bidders, including SMEC, were invited to make presentations at the BEC.
[49] The affidavit by the Department and the minutes show that SMEC’s price
proposal was R45 363 709.48, Hatch ’s was R47 647 149.99 and Gibb ’s was
R84 729 381.77. The Department disclosed that Hatch’s price included
disbursements. The BEC adjusted the price to exclude these disbursements,
yielding a price offer of R 46 943 004.91.
[50] The adjustment made by the BEC was amongst the complaints placed on
appeal before the BAT. SMEC’s complaint was that its bid price was the lowest
at R45 363 709.48 including VAT and it should have thus been awarded the
Tender. As will be seen, this was considered by the BAT.
[51] A critical issue influencing the decision not to award the Tender to SMEC
is that after the BEC assessed the price evaluation, it found that SMEC’s price
offer deviated from the Tender requirements in the following respects:
(a) Its fee proposal for the PPP procurement phase state d that it was ‘subject
to the scope of work set out in the technical proposal. Any work required which
is out of scope will be treated as a change in scope and will be billed for
separately at a rate to be agreed’.
(b) Its bid price proposal in respect of the PPP procurement phase was
subject to the condition that : (i) there were no more than ten bidders during the
20
evaluation of the RFQ phase and ( ii) no more than three prequalified bidders
who submit compliant bid responses to the RFP.
(c) It excluded any negotiation support that might be required with the
private partner during the procurement phase.
[52] SMEC does not dispute that on 29 March 2019, the BEC invited it to
clarify the qualification and exclusion of negotiation support in the procurement
phase of the project, and its impact on its bid offer and price. On 2 April 2019,
SMEC wrote that:
‘Based on previous experience we have reservations over the potential duration of the
negotiation process. Our concern has been and remains that the allocation of financial risks
and related obligations may be outside of our control and could result in protracted
negotiations. At the time of bidding, we elected to address the concern by not pricing for the
negotiations process on account of the fact that the negotiations time frame could be at large.
…
However, we will, if appointed, provide negotiation services and support within our price for
a duration of three months, on the basis that the procurement process will be designed and
implemented to curtail the risk of protracted negotiation.’
[53] SMEC asserted that this did not alter its bid offer price but merely
clarified that the three months of negotiation support required during the
procurement phase with the selected bidder formed part of its bid offer. It
clarified that i ts offer ‘includes three (3) months of negotiation support at the
procurement stage’. It confirmed this stance in its founding affidavit.
[54] SMEC contended further that once it met the functionality threshold, its
bid should have been found responsive. There is no merit to this claim. By
submitting the bid, SMEC agreed to participate in the two envelope tender
evaluation process, which separated the bid evaluation into two stages, namely
21
functionality and price evaluation. This approach is also sanctioned by the SCM
Policy. It entailed that SMEC’s bid offer price would be evaluated separately.
[55] The MEC and the Department contend ed that although SMEC’s offer
price appeared to have been the lowest , SMEC’s offer excluded a material and
complex part of the scope of work of a transaction advisor. This rendered
SMEC’s bid conditional, incomparable, partially ‘non-responsive’ and not an
‘acceptable tender’. The BEC concluded that SMEC's offer was incomparable
due to the exclusion of the price for negotiation support at the procurement
stage.
[56] SMEC sought to suggest i n the founding affidavit and during argument
that ‘all the selected bidders included certain exclusions in their respective
offers’. This pertained to fact that Hatch ’s bid offer price included VAT and
disbursements. It also claimed that the BEC evaluated the Tender with the view
to favo ur Hatch . I t also relied on the way the Department dealt with Hatch’s
pre-feasibility cap, which exceeded 15%, as stipulated in the bid specification.
[57] SMEC’s complaint is that Hatch was not disqualified. The BEC resolved
that an alternative percentage must be agreed to during the negotiation process.
The matter simply disappeared and was referred to negotiation. It suggested that
the BEC allowed impermissible, parallel negotiations with Hatch.
[58] In answer, the Department explained that Hatch’s cost for the
prefeasibility phase was 18% plus 5% of the mobilisation fee, which was higher
than the 15% cap. SMEC’s cost for the prefeasibility phase was 22% plus 5 % ,
thus higher than Hatch. All three qualifying bidders, including SMEC, exceeded
the prefeasibility cap. All the bidders clarified that the amount of work required
22
was higher than 15%. The issue was not unique to Hatch. Consequently, Hatch
was not singled out for a special parallel consideration. The BEC recommended
to the BAC that the prefeasibility cap be dealt with during negotiations after a
successful bidder was selected on the merits of their bids (own emphasis) . In
essence, had SMEC been the preferred transaction advisor, it would have been
similarly treated.
[59] Importantly, this complaint was ventilated during the appeal before the
BAT. It found that since all the bidders exceeded the 15% cap and expressed the
same concern, the recommendation to resolve the fee cap through negotiation
after selecting a successful bidder did not prejudice any of the bidders. The
BAT concluded it was a sensible , rational approach , given that the issue
affected all the shortlisted bidders. It reasoned that a rejection of all three bids
after the clarification process would have been irrational. The bidders were
similarly placed in so far as the prefeasibility issue, treated equally and were not
prejudiced by the approach . The BAT found the alleged irregularity
inconsequential, given the ir common placement on the issue and that their
binding offers were all before the BEC for adjudication. There are other
reasons, with respect, why the view by the BAT is correct when one considers
the scope of what is subject to TA in the PPP regulations, but it is not necessary
to enter that debate as it was not raised during argument.
[60] The point advanced by the Department on the strength of the
Constitutional Court decision in Steenkamp NO v Provincial Tender Board,
Eastern Cape,18 is that the tender required ‘strict and equal compliance by all
competing tenderers on the closing day for submission of tenders.’ As Ms
Gabriel contended, the conclusion by the BEC that SMEC’s tender was not
18 Steenkamp NO v Provincial Tender Board, Eastern Cape [2006] ZACC 16; 2007 (3) SA 121 (CC) para 60.
23
comparable is supported by decision of the S CA in Premier, Free State, and
Others v Firechem Free State (Pty) Ltd,19 which held that:
‘One of the requirements of such a procedure is that the body adjudging tenders be presented
with comparable offers in order that its members should be able to compare. Another is that a
tender should speak for itself. Its real import may not be tucked away, apart from its terms.
Yet another requirement is that competitors should be treated equally, in the sense that they
should all be entitled to tender for the same thing.’
[61] The logic of this position cannot be gainsaid , since tenders are evaluated
relative to one another. Although not pressed during argument, there is a second
important contractual principle arising from the dictum in Firechem.20 The
SCA, citing with approval The Law of Contract in South Africa ,21 as well as
Scheepers v Vermeulen22 and Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd
and Other Related Cases 23 held that ‘an agreement that the parties will
negotiate to conclude another agreement is not enforceable, because of the
absolute discretion vested in the parties to agree or disagree ’. To the extent that
SMEC’s bid offer had a material exclusion and was conditional in respect of the
mandatory contractual support during the PPP procurement phase, it can be
concluded on the strength of Firechem that SMEC’s bid offer was opaque for
want of a material term and was not a binding offer o pen to acceptance or
rejection on its written terms.24
[62] I agree that SMEC must stand or fall by its bid offer , which excluded a
material component of the tender specification relating to the negotiation phase
of the project. SMEC was lawfully and justifiably excluded from the tender
19 Premier, Free State, and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) (Firechem) para 30.
20 Ibid para 35.
21 R H Christie The Law of Contract in South Africa 3 ed (1996) at 152.
20 Ibid para 35.
21 R H Christie The Law of Contract in South Africa 3 ed (1996) at 152.
22 Scheepers v Vermeulen 1948 (4) SA 884 (O) at 892.
23 Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd and Other Related Cases 1985 (4) SA 809 (A) at 828I.
24 See African Banking Corporation of Botswana Ltd v Kariba Fu rniture Manufacturers (Pty) Ltd and Others
[2015] ZASCA 69; 2015 (5) SA 192 (SCA) para 18.
24
process. The finding should be dispositive of SMEC’s case. Since SMEC fails
on the challenge of its exclusion, on the principles in Giant Concerts,25 the
balance of any other interest it seeks to enforce would be hypothetical and
academic, so too would the other orders it seeks in terms of s 6(1) of PAJA.
[63] For completion, however, something must be said about the scope of
SMEC’s premise for locus standi and the review challenge, which, as shown,
were broader than the dispute about its exclusion from the tender process. This
concerns the orders:
(a) Challenging the BAT’s decision confirming SMEC’s exclusion, leading
to the acceptance of the recommendation to appoint Hatch; and
(b) Nullifying the tender process and the award on the grounds that the
Tender was unsuccessfully completed on 25 October 2018.
The BAT’s decision confirming SMEC’s exclusion
[64] With regard to the review of the BAT’s decision, SMEC contended the
BAT ‘reflected on two decisions which impact its rights ’, namely, the
confirmation of the exclusion and appointment of Hatch. The gist of the
complaint was that the BAT failed to properly consider the internal appeal by
recommending the dismissal of its appeal to the MEC for Finance. It submitted
that the BAT did not adhere to a fair administrative procedure. SMEC
complained that the issues raised in the internal appeal were neither fully nor
meaningfully addressed, and the BAT's actions did not meet the standards of
fairness mandated by law.
[65] When questioned about the grounds on which SMEC impugn ed the
decision of the BAT, SMEC relied on paras 40 -99 of its founding affidavit , and
25 Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others [2012] ZACC 28; 2013 (3) BCLR 251 (CC).
25
complained that the procedure was not fair and the grounds relied upon
demonstrate why the decision of the BAT to confirm the decision of the
Department was an error.
[66] However, the grounds SMEC relied on, merely reiterate the terms of the
tender specifications26 and thereafter dealt with (a) the BEC’s approach to the
adjudication of the Tender and the basis for concluding that SMEC’s bid was
non-responsive;27 (b) SMEC’s interpretation of the tender specification relative
to price; and (c) the grievances about the terms of the tender specifications and
the irregularity complaints by the BEC and the selection of Hatch.28
[67] Other than the complaint s in para 98 that the BAT failed to uphold
SMEC’s internal appeal and that its decision is tainted by the irregularities
alleged against the BEC, there are no allegations or grounds of irregularities
levelled against the BAT or the BAC ’s decision -making process. SMEC
contended it engaged with the decision of the BAT in para 99, by simply
stating:
‘In the premises, the decision of the fifth respondent is similarly tainted by the irregularities
referred to above.’
[68] The point by Mr Dickson (for the BAT and the MEC for Finance) is that
SMEC failed to deal with the written decision of the BAT. SMEC merely made
broad, unsubstantiated allegations of irregularities , without engaging fully with
the decision or pinpointing a clear, procedural basis for challenging it.
[69] It bears mentioning at this stage that the Province of KwaZulu -Natal has
not enacted provincial legislation governing procurement since the repeal of the
26 The founding affidavit paras 40-56.
27 The founding affidavit paras 57-70.
28 The founding affidavit paras 71-97.
26
KwaZulu-Natal Procurement Act 3 of 2001 (the repealed KZN Procurement
Act). Clause 20 of the SCM Policy stipulates the grounds on which the BAT
may interfere with the decision of the BAC on appeal . It was contended that the
grounds on which it may do so were, in essence, a review.29 That submission is
supported by the SCA decision in Tetra Mobile Radio (Pty) Ltd v MEC
Department of Works and Others,30 where the court, dealing with ss 20 and 21
of the repealed KZN Procurement Act stated that: ‘…. the appeal provided for
in s 20 is in substance a review ’. Clause 20 of the SCM Policy mirrors the
provisions of the repealed KZN Procurement Act.
[70] As already alluded to, SMEC relied on the challenge to the BAT ’s
decision as the foundation for its locus standi. Notwithstanding its contention
that the merits of its review must be dealt with at a later stage (a position I have
found to be incorrect) , SMEC, consistent with Giant Concerts, was required to
demonstrate the unlawfulness of the BAT’s decision and articulate precisely
what part of that decision adversely affected its rights. It advanced nothing on
this score. It is wholly insufficient to rely on the unfavourable outcome.
[71] The review would not have be en adjudicated on a pie cemeal basis , as
suggested. SMEC was, in addition to the above, required to articulate the
grounds upon which the decision by the BAT is susceptible to a review in its
founding and supplementary affidavits. SMEC failed to advance any of the
above, let alone the grounds for a review of the decision taken by the BAT.
29 The grounds are that the BAT:
‘(a) committed misconduct in relation to their duties as members;
(b) committed a gross irregularity;
(c) exceeded its or their power;
(d) awarded a tender in an improper manner; or
(e) awarded a tender inconsistent with the objectives of this Act.’
30 Tetra Mobile Radio (Pty) Ltd v MEC Department of Works and Others [2007] ZASCA 128; 2008 (1) SA 438
(SCA) (Tetra) para 11.
27
Accordingly, its claim for locus standi on this basis and its effort to impugn the
decision of the BAT fails.
[72] The above finding brings me to the refashioned order for the nullification
of the tender process. This issue is not only r elevant to the order s sought but
influences the approach I take to the ultimate costs order.
The order nullifying the tender process
[73] SMEC submitted, based on the amended notice of motion , that the tender
process and the award of the Tender should be set aside because it was awarded
after the tender validity period expired. The Tender validity period expired on
25 October 2018. The effect of the submission is that the Tender lapsed
approximately more than six years ago, and the respondents would have to re -
run the tender process.
[74] SMEC found support for this contention from the SCA ’s decision in
Ekurhuleni Metro Municipality v Takubiza Trading & Projects CC and
Others.31 Its argument went as follows: if it is found that SMEC has locus standi
to challenge its exclusion and the lapsing of the tender based on Takubiza, then
the question of the award to Hatch comes into play. That question must be
answered without reference to the merits of the case, because I must assume that
the lawfulness of the complaints about the procedure are correct.
[75] The facts in Takubiza find no application in this case. In Takubiza, the
request for the confirmation of an extension of the tender validity period was
dispatched on the day of the expiry of the tender . The court found th e late
request stood on the same footing as where a confirmation for an extension is
31 Ekurhuleni Metro Municipality v Takubiza Trading & Projects CC and Others [2022] ZASCA 82; 2023 (1)
SA 44 (SCA) (Takubiza).
28
not received, as it did not achieve the intended purpose. In the present case, a n
extension of the bid validity period was sought from all bidders , including
SMEC, who acquiesced on 30 October 2018 , and proceeded to participate in
Tender evaluation meetings without ado
[76] The contention that the Tender is null and void is confounding for the
following reasons:
(a) SMEC would have known or ought to have reasonably known about the
expiry of the Tender, before exercising its right to appeal to the BAT . T he
knowledge about the nullity of the Tender was not dependent on obtaining
information in the rule 53 record.
(b) SMEC pursued the appeal before the BAT, which on the strength of
Caine Bros (Pty) Limited t/a Triple A Beef v Development Tribunal for
KwaZulu-Natal and Others,32 which it did not dispute, constituted a rehearing
of SMEC’s complaints on the merits.
(c) The new g round nullifying the tender process was not raised anywhere
and was not foreshadowed in the proceedings before the BAT as the subject of
the internal appeal and the internal remedy in the SCM Policy, designed for that
purpose.
(d) Although it was contended the ground is raised in the alternative, it was
equally argued that SMEC does not abandon any other grounds it relied upon
for locus standi and the review . A n order nullifying the Tender is m utually
exclusive with SMEC’s complaint about its exclusion, specifically the
32 Caine Bros (Pty) Limited t/a Triple A Beef v Development Tribunal for KwaZulu -Natal and Others [2016]
ZASCA 81 para 9. The court observed that: ‘It should be noted at this point that the appeal was a full rehearing,
taking into account further evidence and submissions. Cora Hoexter Administrative Law in South Africa 2 ed
(2012), the leading authority on South African administrative law, points out that, in general, administrative
appeals are established to deal with the merits of a decision, and the appellate tribunal will step into the shoes of
the decision-maker (p 65). She refers to the classic decision in Tikly & others v Johannes NO & others 1963 (2)
SA 588 (T) at 590F -591A, in which Trollip J distinguished between a wide appeal, which amounts to a
complete re -hearing and redetermination on the merits of a matter, and a narrow appeal where the appellate
body is confined to the record. This was a wide appeal.’
29
mandamus to be included and considered in a tender, which by its own account,
is null and void. It renders the order to evaluate its bid superfluous.
[77] As contended on behalf of the Department, with reference to IN2IT Tech
(Pty) Limited v Gijima Holdings (Pty) Limited and Others ,33 which cited with
approval another case involving SMEC, namely, SMEC South Africa (Pty) Ltd v
City of Cape Town and Others; SMEC South Africa (Pty) Ltd v City of Cape
Town and Others,34 and dealing with a failure to raise grounds of attack:35
‘… it is undesirable for a bidder to take a chance in the hope that it will be awarded the tender
and “keeping in reserve an attack on the validity of the tender terms should it be unsuccessful
in winning the bid”.’
[78] In addition to the above, the order seeking to nullify the tender is wholly
inconsistent and incompatible with the terms of the interdict ,36 hastily obtained
before Chili J to halt the implementation of the project. Until the amendment,
the primary grounds for complaint were about irregularities in the bid
evaluation process resulting in SMEC’s exclusion. To my mind , a declaration
that the Tender is a nullity is a question of fact and law. It materially alters the
basis for the review and trigger s the extension of the period in s9 of
PAJA.37Although the respondent did not formally and separately opposed this
as irregular , but did so in argument, i t was impermissible for SMEC to
unilaterally introduce it, out of time, without a full explanation, and without an
application for the extension the period required.
33 IN2IT Tech (Pty) Limited v Gijima Holdings (Pty) Limited and Others [2023] ZAGPJHC 478 (IN2IT Tech).
34 SMEC South Africa (Pty) Ltd v City of Cape Town and Others; SMEC South Africa (Pty) Ltd v City of Cape
Town and Others [2022] ZAWCHC 131.
35 IN2IT Tech para 40.
36 See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) on the interpretation of courts
orders and judgments.
orders and judgments.
37 Section 9(2) states that ‘Th e court or tribunal may grant an application [ for an extensions of the period] in
terms of subsection (1) where the interests of justice so require.’
30
[79] The order for the nullification of the Tender lends credence to the
argument by the Department that SMEC brought this application in bad faith
resulting in ‘a loss to the economy of the Province and the City ’. The
respondents had to set the application down for final determination. To illustrate
the point, on SMEC’s refashioned case, the nullity of the tender means:
(a) There was, from the outset, lawfully nothing to participate in, nothing to
evaluate, nothing to award, nothing to adjudicate on appeal and nothing to take
on review.
(b) The knowledge and /or presumptive knowledge of the lapsing of the
Tender means SMEC put the respondents t hrough unnecessary legal costs of
interdicts, a defunct appeal process, an interlocutory dispute about a superfluous
production of the lengthy record running into 40 Volumes (excluding other
material) and this review to enforce a decision that is a nullity.
[80] For the reasons stated above, the application for review must fail. It is not
necessary to determine the non -joinder point. What remains is the question of
costs.
Costs
[81] It is trite that costs follow the result and are at the discretion of the court.
However, the present review, and SMEC ’s approach to the litigation , leave the
impression that it placed its own narrow commercial interests above all else. It
disregarded t he mechanisms created to resolve genuine disputes involving
irregularities or malfeasance in public procurement. The allegations that
SMEC’s application is mala fide and was a stratagem to induce Hatch to ‘walk
away’ loom large. It was met with silence by SMEC. It is appropriate that it is
ordered to pay the costs on scale C.
31
Order
[82] Accordingly, the following order is made:
(a) The applicant has the requisite locus standi to challenge its exclusion
from the tender process in respect of Tender Number Z[...].
(b) The application to review and set aside the applicant’s exclusion from the
tender process is dismissed.
(c) The application to declare th at the tender process ha s lapsed, is invalid
and null and void is dismissed.
(d) The application to review and set aside the decision by the fourth
respondent to dismiss the applicant’s internal appeal and to recommend the
appointment of the sixth respondent is dismissed.
(e) The application to review and set aside the decision by the fifth
respondent to accept the recommendation by the fourth respondent is dismissed.
(f) The applicant is ordered to pay the costs of:
(i) The second, third, fourth and fifth respondent s in respect of the
review application.
(ii) The costs of the urgent application dated 3 July 2020 , limited to
those costs incurred by the opposing party in the urgent
application.
(iii) The partial costs of the first and second respondents in the
interlocutory application, which shall exclude the costs associated
with the applicant successfully obtaining the order of the items
listed in paragraph 36.1 of the court order dated 4 October 2023.
(g) The costs in paragraph (f) above shall be on scale C and shall include the
costs consequent upon the employment of senior counsel, where so employed.
__________________
32
SIWENDU J
This Judgment is handed down electronically by circulation to the Applicant
and Respondent’s Legal Representative and the Defendants by email,
publication on Case Lines. The date for the handing down is deemed 23
September 2025
Appearances
Matter heard : 29 July 2025
Judgement handed down : 23 September 2025
Counsel for the applicant: S. D Wagener SC
Instructed by: Kally & Co
Locally represented by: C/O Stowell & Co
Counsel for the second and third respondents: AA Gabriel SC
Instructed by: PKX Attorneys
Counsel for the fourth and fifth respondents: AJ Dickson SC
Instructed by: Xaba Attorneys