REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-001253
DATE: 11 November 2025
In the matter between:
THRU RAINBOW (PTY) LIMITED Applicant
and
NATIONAL TREASURY First Respondent
THE MINISTER OF FINANCE N O Second Respondent
ERESA AFRICA (PTY) LTD Third Respondent
ERESA (PTY) LTD Fourth Respondent
JOHANNES FREDERIK
JANSE VAN RENSBURG BRUMMER Fifth Respondent
KIMBERLEY DANIELLE ANANTHAN Sixth Respondent
TORINET (PTY) LTD Seventh Respondent
ERNESTIA BRUMMER Eighth Respondent
RENIER OCKERT SMIT Ninth Respondent
REINHARDT BODENSTEIN Tenth Respondent
Neutral Citation: Thru Rainbow v National Treasury and Other s (2024-
001253) [2025] ZAGPJHC --- (11 November 2025)
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Coram: Adams J
Heard on: 10 November 2025 – ‘virtually’ as a videoconference on Microsoft
Teams
Delivered: 11 November 2025 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email, by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 10:00 on
11 November 2025.
Summary: Application for leave to appeal – s 17(1)(a)(i) of the Superior
Courts Act 10 of 2013 – an applicant now faces a higher and a more stringent
threshold –
Leave to appeal granted to the Full Court of the Division.
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ORDER
(1) The applicant is granted leave to appeal to the Full Court of this Division.
(2) The cost of this application for leave to appeal shall be costs in the appeal.
JUDGMENT [APPLICATION FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original opposed judicial
review application by the applicant (‘Thru Rainbow’) for an order reviewing and
setting aside an award by the first respondent (‘National Treasury’) to the third
respondent (‘Eresa Africa’) and the seventh respondent (‘Torinet’) of tender
number TT4-2023, descriptively titled as a Bid for ‘The Supply and Delivery of
Emergency and Rescue Equipment to the State for a period of 60 months’ (‘the
Tender’). The applicant in the original review application also applied for
ancillary relief. On 14 March 2025 I dismissed, with costs , the applicant’s
aforesaid application. The applicant is also the applicant in this application for
leave to appeal and the respondents herein were the respondents in the main
application.
[2]. The applicant applies for leave to appeal against the whole of the
aforementioned judgment and the order, including the order for costs, as well as
against the reasons for such order . The applicant contends that I erred in
dismissing the application and that I should instead have granted the relief
prayed for by it in the said application.
[3]. In a nutshell the applicant’s case in this application for leave to appeal is
that I erred in finding that the submission of a BB -BEE status level verification
certificate or a sworn affidavit signed by the bidder is not a mandatory pre -
qualification condition . I should not have found , so the contention continues,
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that proof of BB-BEE status by other means could be adduced. The legal
principles under this ground , so the applicant submits, apply equally to the
findings of the court a quo in respect of the failure to submit an organogram by
both the third respondent (Eresa Africa) and the seventh respondent (Torinet).
[4]. The applicant consequently submitted that I erred in dismissing this
ground of review and the ground relating to the organogram . My approach, so
the argument is concluded, is contrary to the authoritative position set by the
Supreme Court of Appeal in Eskom Holdings SOC Limited v Babcock Ntuthuko
Engineering1.
[5]. The applicant furthermore submits that I erred i n not accepting the
second ground on which the review application was based, namely that Torinet
misrepresented the relationship between it and its main supplier ( United
Conscious (Pty) Ltd ). I should have found, so it is contended on behalf of the
applicant, that Torinet was obliged to indicate this relationship in its bid
documents but failed to do so , which constitutes a material misrepresentation
and means that Torinet ought to have been disqualified. Ditto, so the applicant
contends, as regards the third ground in relation to Torinet's tax compliance
status and the fourth ground relating to collusion between Torinet and Eresa
Africa in their bid submissions.
[6]. Nothing new has been raised by the applicant in its application for leave
to appeal. In my original judgment of 14 March 2025 , I have dealt with most, if
not all of the issues raised by the applicant in this application for leave to appeal
and it is not necessary for me to repeat those in full. Suffice to restate what I
say in my said judgment, which is that , i n the final analysis, the procurement
process followed by National Treasury and the subsequent award of the tender
to Eresa Africa and Torinet were ‘in accordance with a system which is fair,
equitable, transparent, competitive and cost effective’. It therefore complied with
equitable, transparent, competitive and cost effective’. It therefore complied with
the letter and the spirit of Section 217(1) of the Constitution.
1 Eskom Holdings SOC Limited v Babcock Ntuthuko Engineering [2024] ZASCA 63 at paragraphs 39 to
45.
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[7]. The traditional test in deciding whether leave to appeal should be
granted was whether there is a reasonable prospect that another court may
come to a different conclusion to that reached by me in my judgment. This
approach has now been codified in s 17(1)(a)(i) of the Superior Courts Act 10 of
2013, which came into operation on the 23 rd of August 2013, and which
provides that leave to appeal may only be given where the judges concerned
are of the opinion that ‘the appeal would have a reasonable prospect of
success’.
[8]. In Ramakatsa and Others v African National Congress and Another 2, the
SCA held that the test of reasonable prospects of success postulates a
dispassionate decision, based on the facts and the law that a court of appeal
‘could’ reasonably arrive at a conclusion different to that of the trial court. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are
prospects of success.
[9]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law that the Court of Appeal could reasonably
arrive at a conclusion different to that of the trial court. In order to succeed, therefore,
the appellant must convince this Court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote, but have a realistic
chance of succeeding. More is required to be established than that there is a mere
possibility of success. That the case is arguable on appeal or that the case cannot be
categorised as hopeless. There must, in other words, be a sound, rational basis for the
conclusion that there are prospects of success on appeal.’
conclusion that there are prospects of success on appeal.’
2 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021);
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[10]. In Mont Chevaux Trust v Tina Goosen 3, the Land Claims Court held (in
an obiter dictum) that the wording of this subsection raised the bar of the test
that now has to be applied to the merits of the proposed appeal before leave
should be granted. I agree with that view, which has also now been endorsed
by the SCA in an unreported judgment in Notshokovu v S 4. In that matter the
SCA remarked that an appellant now faces a higher and a more stringent
threshold, in terms of the Superior Courts Act 10 of 2013 compared to that
under the provisions of the repealed Supreme Court Act 59 of 1959. The
applicable legal principle as enunciated in Mont Chevaux has also now been
endorsed by the Full Court of the Gauteng Division of the High Court in Pretoria
in Acting National Director of Public Prosecutions and Others v Democratic
Alliance In Re: Democratic Alliance v Acting National Director of Public
Prosecutions and Others5.
[11]. I am persuaded that the issues raised by the applicant in its application
for leave to appeal are issues in respect of which another court is likely to reach
conclusions different to those reached by me. I therefore conclude that there
are reasonable prospects of another court making factual findings and coming
to legal conclusions at variance with my factual findings and legal conclusions.
The appeal, therefore, in my view, does have a reasonable prospect of success.
[12]. Leave to appeal should therefore be granted. I do not however believe
that, in view of the complexity of the legal issues raised, leave to appeal should
be granted to the Supreme Court of Appeal. I therefore intend granting leave to
appeal to the Full Court of this Division.
Order
[13]. In the circumstances, the following order is made:
3 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
4 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
5 Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC
489 (24 June 2016).
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(1) The applicant is granted leave to appeal to the Full Court of this Division.
(2) The cost of this application for leave to appeal shall be costs in the appeal.
_________________________ ___
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 10 November 2025 – ‘virtually’ as a
videoconference on Microsoft Teams
JUDGMENT DATE: 11 November 2025 – Judgment
handed down electronically
FOR THE APPLICANT: Y Alli
INSTRUCTED BY: Hajibey-Bhyat Mayet & Stein Inc,
Illovo, Sandton
FOR THE FIRST AND SECOND
RESPONDENTS: Z Z Matebese SC, with N Sibeko
INSTRUCTED BY: The State Attorney, Pretoria
FOR THE THIRD AND SIXTH
RESPONDENTS: I Maharajh
INSTRUCTED BY: Shaun Pillay Attorneys Incorporated,
Durban
FOR THE FOURTH, FIFTH AND
EIGHTH RESPONDENTS: No appearance
INSTRUCTED BY: W Duursema Attorneys,
Sunward Park, Boksburg
FOR THE SEVENTH RESPONDENT: H P West
INSTRUCTED BY: Kruger & Okes Attorneys, Nigel
FOR THE NINTH AND TENTH
RESPONDENTS: No appearance
INSTRUCTED BY: No appearance