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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: B230/2023
In the matter between:
MINISTER OF EMPLOYMENT AND LABOUR First Applicant
DIRECTOR GENERAL: DEPARTMENT OF
EMPLOYMENT AND LABOUR
Second Applicant
and
SEKELAXABISO CA INC Respondent
Neutral citation:
Coram: E Botha AJ
Heard: 8 & 10 September 2025
Decided: 20 October 2025
Summary:
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__________________________________________________________________________
ORDER
___________________________________________________________________________
The application is dismissed with costs, including the costs consequent upon the employment
of the advocate for the respondent on Scale C.
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
E BOTHA AJ:
Introduction
[1] The respondent, SekelaXabiso CA Inc, or SkX, is an incorporated firm of chartered
accountants. In March 2022 it was awarded a tender intending to appoint it to a panel of service
providers to render verification and support services to the Unemployment Insurance Fund for
the Covid-TERS disaster benefit.
[2] The first applicant, the Minister of Employment and Labour, and the second applicant,
the Director General: Department of Employment and Labour wants the court to declare the
decision to award the tender unlawful, unconstitutional, and invalid.
[3] Although the Department takes some responsibility for its decision, it primarily blames
SkX. It says it SkX made a misrepresentation that induced it into awarding the tender. SkX
denies this. It opposes the relief and sets out to clear its name from the Department’s
allegations.
[4] The main questions are whether the SkX complied with the requirements of the tender
at the relevant stages and the material times, and whether this application was brought in time.
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The legal basis for the review
[5] Since the Department seeks to invalidate its own decision, this review falls to be dealt
with under the principle of legality.1 Section 1 of the Constitution provides that one of the values
that South Africa is founded on is the supremacy of the Constitution and the rule of law. Section
2 provides that the Constitution is the supreme law and conduct that is inconsistent with it is
invalid.
[6] The Department’s case is that it acted contrary to Section 217 of the Constitution and
the legislation giving effect thereto when it awarded the tender to SkX. The Department argued
that the awarding of the tender to SkX in the circumstances of the case was unfair to other
bidders. Section 217 provides:
“(1) When an organ of state in the national ... sphere of government ... contracts for goods or
services, it must do so in accordance with a system which is fair, equitable, transparent,
competitive and cost-effective.”
[7] In the right circumstances, this may found a case to set aside the awarding of a tender.
Reliance was placed on Steenkamp,
2 where Moseneke DCJ said:
“There can be no doubt that in procuring ... services for the State, a tender board must act
consistently with its statutory mandate. It must act fairly, impartially and independently.
Equally, it may not act with negligent or reckless disregard for the protectable interests of
tenderers. It must act within the legislative power conferred on it and properly and honestly
exercise the discretion it may have. A tender board must in doing its work act transparently
and be held accountable, when appropriate.”
1 See, for example in this regard: State Information Technology Agency SOC Limited v Gijima Holdings (Pty)
Limited [2017] ZACC (Gijima) 40 para 41; and MEC for Health, Eastern Cape and Another v Kirland Investments
(Pty) Ltd [2014] ZACC.
2 Steenkamp NO v Provincial Tender Board of the Eastern Cape [2006] ZACC 16 at para 35.
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[8] Section 172(1)(a) of the Constitution provides that when deciding a constitutional
matter within its power a court must declare that any conduct that is inconsistent with the
Constitution is invalid. In Simeka3 the Supreme Court of Appeal reminded:
“... once a court has found that any conduct is, as a fact, inconsistent with the Constitution,
such a court is obliged to declare it invalid. It has no choice in the matter.”
[9] This is what the Department calls on the court to do.
The factual basis for the review
[10] The deponent to the Department’s founding affidavit, Mr Gumede, is the Deputy-
Director: Compliance at the UIF. In it, he declares that he has personal knowledge of all the
facts and that he has unlimited access to the records of the Department relating to this matter.
[11] On 6 August 2021 the Department issued and advertised a tender under number
UIF7/2021. The request for proposals, or RFP, says that its purpose was to establish a panel of
service providers to render verification and support services for the COVID-19 TERS disaster
benefit for a period of twelve months. The bid closing date was 27 August 2021.
[12] Mr Gumede explains that the bid evaluation process had four phases. He describes
phase two as follows:
“Phase two: Primary reviews of mandatory and other bid documents which documents include
invitation to bid, declaration of interest, preference point form, declaration of bidder 'supply
chain management, certificate of independent bid determination, registration on Central
Supplier database, tax compliance status pin and UIF compliance. Non submission of the
required pricing information, both SBD 3.3 will lead to immediate disqualification. Failure by
3 Minister of International Relations and Co-operation and Others v Simeka Group (Pty) Ltd and Others [2023]
ZASCA 98 (14 June 2023).
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a bidder to be compliant with UIF contributions and declarations at the award stage will lead
to disqualification.”4
[13] The various phases and stages of the process, as well as the portion that Mr Gumede
underlined is important and will be returned to later. He goes on to explain that SkX was one
of forty-one bidders. SkX’s bid document was not placed before the court, but the main source
of the Department’s complaint was: a UIF compliance certificate that SkX provided to the
Department when it submitted its tender. This certificate is central to the Department’s case
and is referred to in this judgment as the manual certificate.
[14] Pursuant to a bid evaluation and adjudication process, SkX was awarded the tender on
31 March 2022. This, the Department says, should not have happened, because of the manual
certificate. To start to appreciate the Department’s case in respect of the manual certificate it is
necessary to quote paragraphs 18 to 22 of the founding affidavit in full:
“18. It is worth mentioning that the Bid Evaluation Committee and the Bid Adjudication
Committee of the Department both believed, at the time of the evaluation and the award
and mistakenly or erroneously so, that the UIF compliance certificate submitted by SkX
with its bid was valid.
19. Later and pursuant to the award it came to the attention of the UIF that the UIF
compliance certificate submitted by SkX was not valid. The UIF then conducted an
investigation through its compliance Department.
20. The investigation revealed that SkX's UIF compliance certificate
submitted with the bid
was issued manually on 11 May 2021 and signed off on 27 August 2021. The
Department ceased or stopped issuing manual compliance certificates with effect from
24 January 2021.
4 Sic. Underlining is the deponent’s in the founding affidavit.
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21. Accordingly at the time of supposedly issue of SKX certificate, the generation
of manual
compliance certificate was already abolished on the 24 January 2021. Starting from 25
January 2021, UIF was generating compliance certificate electronically.
22. The above further pointed to the certificate having been issued fraudulently an issue
that the Department is still trying to investigate. What is clear though is that the
certificate submitted by SkX was invalid and SkX failed to comply with a mandatory
requirement of the bid and ought not have been awarded the tender”
[15] The founding affidavit and the argument on behalf of the Department goes further than
its concern about the manual certificate. It explains that a ‘[f]ailure by a bidder to be compliant
with UIF contributions and declarations at the award stage will lead to disqualification.’
However, there are two separate paragraphs in the founding affidavit where the Department
alleges that SkX made contributions. For reasons that will become clearer, the Department
does not elaborate on these allegations. There are also two separate paragraphs where it says
that SkX was not compliant with Section 10 of the Unemployment Insurance Contribution Act.
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Section 10 concerns an employers’ duty to register as employer and to provide particulars
concerning employees to the Commissioner. Like the contributions, the founding affidavit is
also silent on the factual basis for the Department saying that SkX was not compliant with
Section 10.
Was SkX compliant with UIF contributions and declarations?
[16] The Department says that it was a mandatory and material term of the bid that bidders
like SkX must comply with the UIF requirements in terms UIF contributions and declarations.
It says this because it will only award a contract to a bidder who is fully compliant in terms of
UIF contributions and declarations. This estimation by the Department of the requirements of
5 4 of 2002. Hereinafter referred to as the “UIC Act”.
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the RFP is correct, and accords with Clause 14 thereof. There are at least four reasons to find
that SkX was up to date with its declarations and contributions to the UIF at the material times.
[17] First, the Department does not provide any evidence that SkX was non-compliant in
respect of either the submission of declarations or payment of contributions at the time that the
bid was made in August 2021. One would expect that the Department’s records - which Mr
Gumede says he has full access to - would have made it simple to provide the necessary
evidence. Ms Poswa-Lerotholi, initially argued strongly that SkX was not compliant. She was
constrained to concede that the Department’s papers does not provide evidence that SkX was
not up to date with declarations or contributions when the bid was made or when the tender was
awarded. This included that there was no merit in the Department’s allegation that SkX did not
comply with Section 10 - a point that was abandoned.
[18] Second, SkX alleges that it was compliant with declarations and contributions. It is not
a bare denial. It goes to some trouble to explain why it says so, including providing evidence
of two instances before the manual certificate was issued where it was initially informed by the
Department that it was in arrears with payments and where it paid the arrears. There is no reason
to reject its version, particularly under circumstances where the Department did not provide
evidence to the contrary. The Department seeks to undermine SkX’s allegations by pointing
that out that the manual certificate was issued the day after the payment of 10 May 2021 was
made, although it was indicated that reapplication could be made after seven working days. If
the information on and the timing between the Department’s letter of non-compliance of 7 May
2021; the payment made by SkX on 7 May; and the Department’s letter of non-compliance on
10 May 2021, is considered, it is clear that the Department was indeed processing information
10 May 2021, is considered, it is clear that the Department was indeed processing information
faster than seven working days. This suspicion the Department had was elevated to a fact that
SkX ‘was fully aware that the certificate did not originate from the UIF’. This is not borne out
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by the evidence. As suspicious as the Department may have found this, its suspicion cannot
displace the evidence.
[19] Third, SkX attached to the answering affidavit an electronic compliance certificate dated
12 November 2021. This was during the evaluation phase, before the bid was awarded to SkX.
The Department took no issue with its validity. During argument, Ms Poswa-Lerotholi
conceded that this electronic compliance certificate is valid; then went on to submit that it does
not change the fact that SkX initially filed the manual certificate. The point is that on the
Department’s own version the electronic compliance certificate would not have been issued
unless SkX was up to date with declarations and contributions. This is compelling evidence
that it was up to date at the relevant time.
[20] Fourth, Mr Gumede attempts to persuade that the submission of the manual certificate,
which he says is fraudulent, is evidence that SkX was not compliant with contributions and
declarations. It is an argument that rests on a contradiction. The version to which he is
committed is that the manual certificate was falsified. If that is the case, he cannot rely on it as
being evidence of anything other than its falsity. Just like a false certificate cannot be evidence
that SkX was up to date, it also cannot be evidence that SkX was not up to date, as he argues.
The conclusion Mr Gumede arrives it requires an inference that is not open for the court to draw
on the evidence.
[21] It accordingly must be held that from 11 May 2021 and at all relevant times thereafter,
SkX was compliant with UIF declarations and contributions within the meaning of the RFP.
Was there fraud or a fraudulent misrepresentation by SkX?
[22] Mr Gumede says that the Department was induced to award the tender to SkX because
of a misrepresentation. He then goes on to typify it as a fraudulent misrepresentation. Later,
he says that the timing thereof pointed to it being ‘issued fraudulently’. Whilst relying on the
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fact that it was issued on 11 May 2021, he says it was signed off in August 2021. The August-
date was merely the date on which it was later certified to be a true copy. At the time that the
application was launched in January 2023, he acknowledged that the alleged fraudulent issuing
of the manual certificate was ‘an issue that the [D]epartment is still trying to investigate’.
[23] In the answering affidavit SkX dismantled the Department’s allegations of fraud by
explaining how it came about that it obtained the manual certificate in a detailed, open and
honest manner. It also pointed that the Department had laid a charge of fraud against SkX long
before September 2022 (the date that Mr Gumede says the Department became aware). It
included in its answer an affidavit and other evidence that SkX submitted to the investigating
officer in that year, before the application was launched. The affidavit and the evidence
attached dispels any suspicion of fraud on the part of SkX. It is no wonder that, as SkX points
out, there was a finding of nolle prosequi. None of this was disclosed to the court by Mr
Gumede. He also avoids this in the replying affidavit. What Mr Gumede says in reply requires
further consideration.
[24] The impression given by the Department is that a bidder would conclude from the RFP
that there was only one way of obtaining a compliance certificate, and that someone without
knowledge of the inner workings of the UIF would, on the face of it, be able to distinguish
between a valid certificate and an invalid one. This is not correct. Although a side-by-side
comparison of the manual certificate and an electronic one shows the differences, the content
of both is typewritten with a manuscript signature appearing to be that of the commissioner or
acting commissioner. In addition to explaining how it came into possession of the manual
certificate, SkX says that it had no way of knowing or suspecting what the Department says
about the manual certificate at the time.
about the manual certificate at the time.
[25] The Departments other argument is based on ‘Annexure J’ of the RFP. Annexure J is
nothing more than a user guide that explains what the so-called ‘e-Compliance certificate’ - or
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‘ECC’ system is, its benefits and how one goes about applying for it through an online portal.
A more complete consideration of the Department’s papers show that it missed an important
part of the RFP. Paragraph 3.2 and 3.3 of the RFP outlines the relevant provisions of the
Unemployment Insurance Act
6 and the UIC Act, before it turns to the submission of a
compliance certificate. It goes on to list a number of e-mail addresses and people from whom
compliance certificates may be obtained. Annexure J confirms the two options when it asks
‘Why send emails when you can obtain a compliance certificate online’. This shows that
compliance certificates were obtainable in more than one way, and it lends further credence to
the evidence and explanation provided by SkX.
Did the submission of the manual certificate preclude the Department from
awarding the tender?
[26] In the founding affidavit, Mr Gumede says:
“It was a mandatory and material term [of] the bid that bidders must comply [with] the UIF’s
requirements in terms of UIF contributions and declarations. Bidders must note that the UIF
will only award a contract to a bidder who is fully compliant with UIF contributions and
declarations ... Furthermore, that bidders must include a compliance certificate as part of the
bid proposals and that failure by a bidder to by compliant with UIF contributions and
declarations at the award stage will lead to disqualification.”
[27] When it comes to the procurement of goods and services by organs of state,
requirements like those in the RFP serve at least two crucial purposes. First, it informs
prospective bidders what is required of them. Second, it foreshadows the terms of the contract
6 63 of 2001.
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that would be concluded between the organ of state and the successful bidder to be incorporated
in the contract.7
[28] The relevant terms of the RFP and Mr Gumede’s outline thereof in the founding
affidavit emphasises compliance with contributions and declarations. The RFP also
distinguishes between those requirements that will lead to ‘immediate disqualification’, and
those that will lead to disqualification at ‘award stage’. 8 In the case of compliance with
contributions and declarations, it requires compliance at the award stage. The relevant terms of
the RFP are clear enough, but it is clarified further by the relevant part of Table 5 in the bid
document that is reproduced here:
Table 5
Documents that must be
submitted
Non-submission may result in disqualification
... ... ...
UIF Compliance
Certificate
**** No Bidders must provide a UIF Compliance
certificate (Refer to Annexure J for the detail)
Important note:
* Non-submission of the required pricing information, ... in the bid proposal will lead to
immediate disqualification.
**Incomplete and unsigned SBD forms that still exist at the Phase 2 evaluation stage will
lead to disqualification.
7 Minister of International Relations and Co-operation and Others v Simeka Group (Pty) Ltd and Others
(610/2021) [2023] ZASCA 98 (14 June 2023) para 61.
8 It also provides for some other requirements that may lead to disqualification at some other stages in between,
but that is not relevant in this instance.
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***Failure by a bidder to be tax compliant at the award stage or have written proof from
SARS to verify their tax compliance status, or the arrangement the bidder has made with
SARS to meet outstanding tax obligations
**** Failure by a bidder to be compliant with UIF contributions and declarations at the
award stage will lead to disqualification (refer to Annexure J for detail).
[29] The table confirms what the terms of the RFP provide: it is not the failure to submit the
document that must lead to disqualification, but a failure to be compliant with contributions and
declarations at the award stage.
[30] It is obvious that the requirement to submit a compliance certificate has a purpose that
goes deeper than the mere submission of a document. It is not part of a mere tick-box exercise.
Its purpose is to assist the Department in determining whether a bidder like SkX is compliant
with regards to declarations and contributions as required by the relevant legislation. The fact
that the evaluation whether a bidder is compliant in this regard is set to happen at the award
stage is conversant with this purpose. For example, the purpose of the requirement will have
been undermined if a bidder submits a valid certificate that is three months old at the time that
the bid is made, but is non-compliant with declarations or payments when the award is made.
What is material is that the bidder must be up to date with declarations and contributions, and
that it is compliant at the award stage.
[31] As said earlier, the Department made much of the reference to ‘Annexure J’, but it
makes reference to another way of obtaining a compliance certificate, through e-mail. The
Department has elevated the reference to Annexure J and the submission of an electronic
compliance certificate to a material requirement that, if not complied with, disqualifies a bidder
during phase two of the evaluation stage. This is not borne out by the RFP.
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[32] As has already been held, there is no evidence provided by the Department that SkX
was non-compliant, and all the available evidence points to it that it was compliant. In the
absence of fraud and in the circumstances of this case it must be found that SkX had complied
with the material requirements of the RFP. The Department was not precluded from awarding
the tender based on the submission of the manual certificate.
Was there any misrepresentation?
[33] Despite it being the Department’s case that the submission of the manual certificate
constituted a fraudulent misrepresentation, it also took another approach. It argued that, even
if the submission of the manual certificate was not fraudulent, it still constituted a
misrepresentation that induced the Department to award the tender that it would otherwise not
have awarded. It is not necessary to decide whether such a misrepresentation would necessarily
have entitled the Department to the relief it seeks, or whether any contractual remedies are
open to the parties, because this approach by the Department fails on the facts.
[34] A party seeking to avoid a contract on the ground of misrepresentation must prove
that: (a) the representation relied upon was made; (b) it was a representation as to a fact; (c) the
representation was false; (d) it was material, in the sense that it would have influenced a
reasonable person to enter into the contract; and (e) it was intended to induce the person to
whom it was made to enter into the transaction.
9 The difficulty facing the Department is
requirement (c), the question whether the representation was false.
[35] To succeed, the Department had to demonstrate at least two facts: first, it would have to
show that the submission of the manual certificate and the information contained therein placed
it under the impression that SkX was compliant with the UIF legislation; and, second, it would
9 Quartermark Inv (Pty) Ltd v Mkhwanazi 2014 (3) SA 96 (SCA) para 14, with reference to Novick and Another
v Comair Holdings Ltd and Others 1979 (2) SA 116 (W).
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have to show that it was actually false, because SkX was non-compliant with the UIF
legislation. For all the reasons already provided, it fails in respect of the second. It is the truth
concerning SkX’s compliance that induced the Department to award the tender, not any
misrepresentation.
Was the awarding of the tender unfair to other bidders?
[36] The Department’s argument is that it had contravened Section 217 and legislation giving
effect to it, because the Department was unfair to other bidders when it awarded the tender. It
argues that, unlike SkX, other bidders were disqualified based on their compliance certificates.
However, it did not provide evidence of this in either of its affidavits.
[37] The only evidence concerning disqualification is a report from the bid evaluation
committee to the bid adjudication committee of 23 March 2022, attached to SkX’s answering
affidavit. Although it refers to the exclusion of fifteen bidders during the evaluation process,
the reasons provided there have nothing to do with compliance certificates.
[38] There is no evidence that SKX was given any advantage over any of the others bidders,
particularly those that were disqualified for other reasons. All the evidence points to it that all
bidders were treated equally and in accordance with the terms of the RFP.
Delay
[39] The Department submits that it became aware of the invalidity of the manual certificate
in September 2022 when it received the outcome of an investigation. The application was
instituted about four months later, on 30 January 2023. On this basis, the Department submits,
there is no delay. It further submits that, if there is a delay, it is not unreasonable, and the court
ought to overlook the delay in the interest of justice. What the Department probably meant by
this is that, if the delay is found to be reasonable the merits can be considered, but if it is found
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that the delay is unreasonable, the court should overlook it in the interest of justice. SkX raises
the fact that Mr Gumede who was a member of the bid evaluation committee took issue with
the manual certificate as early as 2 November 2021. On this basis, it submits that the delay of
more than a year is unreasonable and that the Department has failed to explain the delay.
[40] SkX’s view disregards the fact that the tender was only awarded in March 2022, and
that Mr Gumede’s views and knowledge should not necessarily be taken to be that of the
Department. Despite him having an issue with the manual certificate in November 2021, the
clock starts running when the Department became aware or reasonably ought to have become
aware of the action taken and the reasons for it.
10 The Department’s view ignores the fact that
the investigation was completed in May 2022 and that the Department says it withdrew the
award in May 2022. It is in May 2022 that the Department became aware or reasonably ought
to have become aware of the action taken and the reasons for it. The Department could have
brought the application shortly after that. Yet, it took eight months to do so. Considering the
facts set out above, including the fact that most of the period of delay is unexplained and, in
some respects simply incorrect, the delay is unreasonable.
[41] In a legality review no explicit application for condonation is needed.
11 If the delay is
unreasonable, the question becomes whether the court ought to overlook the delay in the interest
of justice.12 It is a discretion that must be exercised in the circumstances of case, gleaned from
the facts placed before the court by the parties or objectively available facts. 13 Although the
court should be slow to allow procedural obstacles to prevent it from looking into a challenge
10 In Buffalo City Metro Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15 (Buffalo City) para 49 Theron
J held that this was the approach in a legality review. For this, she relied on City of Cape Town v Aurecon South
Africa (Pty) Ltd [2017] ZACC 5 (Aurecon)at 41, where the Constitutional Court held, in the context of delay in a
PAJA review, that ‘the clock starts to run with reference to the date on which the reasons for the administrative
action became known (or ought reasonably to have become known) to an applicant.’ See the discussion of these
two judgments by Rogers J (as he then was) sitting in the Western Cape High Court in Central Energy Fund SOC
Ltd and Another v Venus Rays Trade (Pty) Ltd and Others [2020] ZAWCHC 164 (Venus Rays) para 287.
11 Buffalo City para 51.
12 Buffalo City para 51.
13 Gijima para 49.
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such as this one, undue delay should not be tolerated and vigilance must be exercised. 14 In
Venus Rays15 Rogers J reminded that the approach to be followed in such a case is a flexible
one, and that the various factors to be taken into account are (a) potential prejudice to the
affected parties, the consequences of setting aside the impugned decision, amelioration of
prejudice by granting a just and equitable remedy; (b) the nature of the impugned decision,
including the consideration of the merits of the legality challenge and the extent and nature of
the illegality; (c) the conduct of the applicant; and (d) the Gijima-principle.
[42] In this case the Department did not provide a full and honest explanation for the whole
period of the delay.
16 Where it gave some explanation, it does not accord with the facts. In
cases where there is corruption, collusion or fraud a court may well be ‘[j]ustified in looking
less askance in condoning the delay.’17 For the reasons given this is not such a case. In this case,
the delay does not appear to have caused prejudice to SkX, but that is only because the
Department withdrew the award and SkX seemingly accepted it. Even if the tender was not
withdrawn, SkX would only have been appointed to the panel for a period of twelve months.
There is no evidence of prejudice to the public interest or the Department if the decision to
award the tender is left to stand. In the circumstances of this case, all the considerations related
to prejudice weigh against overlooking the delay. Although the merits of the application is not
a determinative factor, it is an important consideration. For the reasons given, the lack of merit
in the Department’s case militates against overlooking the delay. The Gijima-principle is not
applicable.
18
[43] It is difficult to appreciate why the Department brought this application at all. Even if
it is accepted for the sake of the argument that it had good reasons for doing so, it is still difficult
14 Department of Transport and Others v Tasima (Pty) Limited [2016] ZACC 39 para 160.
15 Venus para 290.
16 Buffalo City para 80.
17 Aurecon para 50.
18 Gijima para 52.
17
to appreciate why it took the approach it did and why Mr Gumede did what he did. In Buffalo
City Cameron J said in a minority judgment that courts ‘[s]hould be vigilant in ensuring that
state self -review is not brought by state officials with a personal interest in evading the
consequences of their prior decisions.’19 He also said that the explanation for the delay ‘is an
opportunity for the state to demonstrate that its self-review seeks to promote open, responsive
and accountable government rather than the self-interest of state officials seeking to evade the
consequences of their prior decisions.’
[44] The Department asks for the invalidation of the awarding of a tender that was withdrawn
two months after it was awarded. If it had not been withdrawn, it would have lapsed two months
after the application was launched. In court it was said on the Department’s behalf that it did
not expect that SkX would oppose the application. Considering the lack of merit and the extent
of the allegations against SkX, this was a mistake. The Department brought the application on
tenuous grounds without having put all the facts and relevant documents before the court. The
Department sought to make out a case that SkX was non-compliant with declarations and
contributions, but was constrained to concede that it did not provide evidence of either. It
accused SkX of being non-compliant with Section 10, only to abandon it as a ground at the
hearing.
[45] Mr Gumede did not place the investigation report before the court, nor did he point out
that there was a report that was concluded in May of 2022. In his replying affidavit he tried to
explain it away with the ambiguous statement that he ‘explicitly mentioned in the founding
affidavit that [SkX’s] compliance certificate was found by the investigation to be invalid in the
investigative report.’ The founding affidavit does not mention the report. He did not inform the
court it was he who sounded the alarm about the manual certificate and that he had done so in
November 2021. He did not disclose that he was a member of the bid evaluation committee
19 Buffalo City para 139.
18
that, in March 2022 wrote to the bid adjudication committee recommending SkX’s
appointment. Yet, in the founding affidavit he says ‘the Bid Evaluation Committee ... of the
department ... believed, at the time of the evaluation and the award and mistakenly or
erroneously so, the that UIF compliance certificate submitted by the respondent with its bid was
valid.’ He also did not tell the court that a charge of fraud was laid against SkX, that SkX had
provided an affidavit and evidence in respect thereof, and that there was a finding of nolle
prosequi. When it was raised by SkX in its answer, he did not reply to it at all.
[46] In setting out various factors for the court to consider in the exercise of its discretion,
Rogers J held
20 as follows with regards to the conduct of an applicant like the Department:
“State actors are subject to a higher duty to respect the law, including a duty to act promptly
when rectifying illegality. However, even where the public functionary has not acted as a model
litigant, unreasonable delay may be overlooked if the functionary acted in good faith or with
the intent to ensure clean governance. There is a difference between muddle and malice.”
[47] Despite having some misgivings, this is probably a case of muddle, rather than malice.
Although it cannot be found that the Department was anything but bona fide when it brought
the application, its bona fides is not sufficient to displace the other factors that weigh against
the court overlooking the delay.
Conclusion
[48] The Department’s delay in bringing the application was unreasonable. In all the
circumstances, considering the relevant factors, it is not in the interest of justice to overlook the
delay.
20 Venus para 290.
[49] In any event, for all the reasons provided earlier, the Depa1tment has not made out a
case for any of the relief that it seeks.
[50] The application stands to be dismissed for both these reasons.
Costs
[ 51] The Depaitment sought attorney and client costs based on what it says was SkX 's
conduct. Beai·ing in m ind the Depaitment and its deponent's conduct, there may have been
sufficient reasons to give a punitive cost order against the Depaitmen t. SkX , however, did not
pursue such an order.
[52] There is no reason to deviate from the principle that the costs should follow the result.
SkX moved for the costs consequent upon the employment of its advocate on Scale C . Bearing
in mind the nature of the matter, its complexity, the nature of the allegations made against SkX ,
and there being sufficient cause to instmct senior counsel in these circumstances, such ai1 order
is justified.
Order
[53] The following order is made :
The application is dismissed with costs, including the costs consequent upon the
employment of the advocate for the respondent on Scale C .
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20
For the Applicants: S Poswa-Lerotholi SC with M V Makamu
(heads of argument prepared by Z Matabese SC
with M V Makamu)
on instruction of State Attorney Pretoria
For the Respondent: J O Williams SC
on instruction of Morne Coetzee Attorneys