REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case N umber: 087 460/2023
(1) REPOR TABLE : NO l'tlle
(2) OF INTER EST TO OTHER JUDGES : NO ~
(3) REVISED ~ /YES
10 OC TOB ER 2025
DATE
In the matter between:
LONEROCK SPARTAN GROUP JV
and
THE MINISTER OF THE NATIONAL DEPARTMENT
OF PUBLIC WORKS AND INFRASTRUCTURE
ZIMBINI HILL NO
LUFUNO NEVONDWE NO
REHANA PARKER NO
RAYMOND NKANDO NO
KARABO SIYILA NO
App licant
First R espondent
Second R espondent
Third Responde nt
Fourth Respondent
Fifth Res pondent
Sixth R espondent
LERATO KUMALO NO
NTHABISENG MKHWANAZI NO
MPILO MBAMBISA NO
KRISHEN SUKDEV NO
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Delivered: This judgment w as prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e-mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-dow n is deemed to be 10 OCTOBER 2025.
JUDGMENT
MAKHOBA, J
[1] The Applicant in this matter is Lonerock Construction (Pty) Ltd. The First
Respondent is the National Department of Public Wo rks and Infrastructure. The
Second to Tenth Respondents are erstwhile members of board of trustees of the
independent development trust (herein referred to as "IDT").
[2] This is an application for payment of monies allegedly due to the Applicant under
the construction contract between the parties, which the first Respondent refused
to pay.
[3] The Applicant seeks the following relief:
3.1. Payment in the amount of R2 799 728.32 (excluding VAT ), being the sum
total of:
(a) R2 268 357.87 (excluding VAT) for the time-related preliminaries
and generals (P&G 's) for 103 days, being the number of days from
the date of suspension to the upliftment of the suspension of works;
and
(b) R531 370.45 (excluding VAT) , which are proven costs for the
standing time for 51 days.
3.2. Costs of the application
[4] The First Respondent (herein referred to as the "Department") seeks an order
declaring Lonerock, the Applicant (herein referred to as "Lonerock") liable to pay
to the Department an amount of R6 441 500.00 in respect of penalties for failure
to complete the works, which covers the period from 03 February 2023 until 30
November 202 ....
[5] The Applicants contended that, the Department has no legal standing to oppose
this application, as that right singularly befalls the IDT (Independent Development
Trust). The IDT has not filed any affidavit in support of the Department.
[6] It is contended further by the Applicant, that the Department does not alleged, nor
claims, that it is entitled to "step in the shoes" of the IDT as the designated
"implementing agent", or that it terminated the IDT's mandate to act as
"implementing agent", and that it now acts in such capacity.
[7] The Department raised the non-compliance with Proceedings Against Certain
Organ of State Act 40 of 2002.
[8] The Department raised the point in limine through a supplementary affidavit that
was filed and served on the Applicant. Counsel for the Applicant did not deal with
this issue in his heads of argument.
[9] It is not in dispute that the Applicant has failed to serve a notice in terms of Section
3 of the Institution of Legal Proceedings Against Certain Organs of the State Act
40 of 2002.
[1 O] In my view IDT was indeed acting on behalf of the Department and it was the
implementing agent. The Department was in terms of the offer of appointment
identified as the employer.
[11] I therefore find that the Applicant did not prove that it delivered the Section 3 notice.
Section 3 of Act 40 of 2002 makes it a prerequisite to commencing legal
proceedings with a notice. Failure to comply must, of necessity, preclude a Plaintiff
from enforcing its claim.
from enforcing its claim.
[12] The application by the Applicant is dismissed with costs.
[13] On the counter claim, it is my view that the First Respondent is not entitled to claim
against the Applicant because it has no contractual basis for any penalty claim.
Further the Department has conceded that the Applicant is entitled to an extension
of time.
[14] I make the following order:
14.1. The Applicant's claim is dismissed with costs for failure to comply with
Section 2(a) of the Institution of Legal Proceedings Against Certain Organs
of State Act 40 of 2002
14.2. The ruling of Endecon Ubuntu (Pty) Ltd Engineering on contractor's claim
for the extension of time and cost taken on 23 April 2023 is declared
irregular, unlawful and invalid, and is set aside.
14.3. The First Respondent's counter claim is dismissed with costs.
Date of Hearing: 25 August 2025
Judgment delivered: 10 October 2025
Appearances
For Applicant: Adv C . Acker
For Respondent: Adv Gift Mashaba SC
D. MAK , OBA J
JUDGE OF THE HIGH COURT
PRETORIA