IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
CASE NO: 205112/2025
In the matter between:
SNR ELECTRICAL CC Applicant
and
KING SABATHA DALINDYEBO LOCAL MUNICIPALITY First Respondent
NGAMELA PAKADE: MUNICIPAL MANAGER KING SABATHA
DALINDYEBO MUNICIPALITY Second Respondent
MEC FOR FINANCE AND PROVINCIAL TREASURY FOR EASTERN
CAPE PROVINCE Third Respondent
JUDGMENT
PITT AJ
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[1] The applicant was an unsuccessful bidder of a tender which was issued by
the first respondent. There is a review application pending before the same court
in respect thereof. The review application has not been pursued because of these
proceedings to compel the third respondent to provide a report to the applicant.
The rep ort relates to an objection which the applicant made to the third
respondent in respect of the awarding of the tender to another party by the first
respondent.
[2] The applicant is SNR Electrical and Mechanical Contractors CC
(“SNR”), a close corporation duly registered. The first respondent is the King
Sabatha Dalindyebo Local Municipality (“KSDM”), a local government
municipality for the district of Mthatha in the Eastern Cape. The second
respondent is the Municipal Manager of the KSDLM, Mr Ngamela Pakade, who
is cited in his capacity as the municipal manager and accounting officer of the
KSDLM. The third respondent is the Member of the Executive Council for the
Department of Finance and Provincial Treasury for the Eastern Cape Province
(“the Provincial Treasury”).
[3] The facts, according to SNR, are briefly as follows. The KSDLM issued
an invitation for a tender to suitably qualified bidders. SNR submitted its bid for
the tender but was not successful. On 5 May 2025, the KSDLM published on its
website the outcome of the tender evaluation, as well as the successful bidder
and unsuccessful bidders. SNR was one of the unsuccessful bidders.
[4] On 12 May 2025, SNR wrote to the KSDLM to communicate its
intention to the rejection of its bid and t he decision not to evaluate it further in
terms of the conditions and in the tender document. The KSDLM failed to
provide reasons and furnish the requested documents.
[5] After the alleged failure, SNR launched an urgent application to interdict
the implementation of the tender pending finalisation of the review application
against the decision not to award the tender to SNR. The KSDLM only provided
reasons for the elimination of SNR from the tender process during the exchange
of affidavits in the review application. The BEC and BEC reports were provided
to SNR, but SNR does not specify by whom. The Provincial Treasury is not a
party to the pending review application.
[6] The review application ‘has not proceeded beyond service of the notice of
motion and founding affidavit and no further step has been taken by the parties
in those proceedings’. This is because Madam Justice Roberson handed down
an order by agreement ‘directing the applicant to file its objection with the
KSDLM in terms of regulation 50 o f the Supply Chain Management Policy
regulations.’ SNR then subsequently filed their objection with the KSDLM on
20 June 2025. Paragraph 2 of the order issued by Madam Justice Roberson
reads thus:
‘2. It is recorded that the First Respondent [KSDLM] has given an undertaking to
resolve the objection lodged by the Applicant [SNR] in accordance with
section 108 of the First Respondent’ s Supply Chain Management Policy read
with regulation 50 of the Municipal Supply Management Regulations.’
[7] The KSDLM refe rred the objection by SNR to an independent person,
who sent a response to the objection (“the outcome”) to the attorneys of the
KSDLM. The attorneys responded per letter which was emailed to the attorneys
of SNR on 4 September that the independent person had considered the
objections by SNR and that the outcome was provided to SNR directly on 18
August 2025.
[8] SNR was not satisfied with the outcome of the objection by the
independent person and escalated the dispute in terms of Regulation 50(5) of the
Municipal Supply Chain Management Regulations to the Provincial Treasury on
2 September 2025. This escalation was also because SNR submit that the
independent person did not have authority to evaluate SNR’s tender beyond the
parameters of the objection. On 3 September 2025, the Provincial Treasury
advised SNR that it (Provincial Treasury) had finalised the objection and
communicated same to the KSDLM and Municipal Manager.
[9] SNR responded on the same date that the failure to communicate the
outcome of the objection to SNR was unlawful, and the Provincial Treasury was
asked for the report. On 14 October 2025, the Provincial Treasury corresponded
with SNR, advising that its role in the dispute was passive and that the law does
not permit it to decide on b ehalf of the KSDLM, and that it cannot release the
outcome to the objection to SNR unless directed to do so by a court order.
[10] On 17 October 2025, SNR wrote back to the Provincial Treasury,
explaining to it the importance of the outcome to SNR and that the refusal to
release the report violates the rights of SNR and prejudices SNR from pursuing
its review of the KSDLM’s decision to eliminate SNR’s tender. SNR gave the
Provincial Treasury until 22 October 2025 “to reconsider its position”, but no
response was received.
[11] SNR complains that it is unable to proceed with its review application
until the internal remedies contemplated in section 7 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) have been complied with or
exhausted, and that the objection is the internal remedy contemplated in section
7.
[12] SNR further allege that the matter is urgent because our Courts have held
that complaints about breach of the rule of law by an organ of state render the
ensuing proceedings inhere ntly urgent. It also submits that proceedings which
seek to arrest or prevent an ongoing breach of the rule of law by an organ of
state are inherently urgent. SNR submit further that review proceedings arising
from the award and implementation of public te nders are treated as inherently
urgent by our Courts because of their constitutional dimension and the risk of
rendering subsequent relief academic.
[13] SNR maintains that the urgency of this application is intensified by the
fact that the tenders were u ltimately awarded between 18 and 21 August 2025,
despite SNR’s objection under regulation 50 and its review application were
still pending. If the matter is not heard urgently the KSDLM will complete the
implementation of the unlawful awards, rendering any future judicial
pronouncement academic and SNR’s rights illusory. SNR will not be able to
exercise its rights under sections 33 and 34 of the Constitution to just
administrative action and access to Court as the review remedy remains
unavailable to it.
[14] SNR launched this application on urgent basis for a declaration to declare
the refusal by Provincial Treasury to release the outcome of its objection as
irrational, unlawful, constitutionally invalid and set aside in accordance with
PAJA. Ancillary to that, SNR wants this Court to direct the Provincial Treasury
to issue the outcome of SNR’s objection in respect of the tender within 5 days
of the order, and that the Provincial Treasury pays the costs of the application,
inclusive of the costs of two counsel on scale C.
[15] This Court is called upon to decide if the refusal by the Provincial
Treasury to provide the outcome of the objection by SNR is unlawful,
unreasonable or procedurally unfair in terms of PAJA. In addition, the Court
must decide whether the dispute resolution mechanism created by regulation 50
of the Municipal Supply Chain Management Regulations constitutes an internal
remedy contemplated in section 7 (2) of the PAJA.
[16] The application is opposed only by the Provincial Treasury. Th is is not
surprising because the relief sought is only against the Provincial Treasury.
What follows is the defence as set out by the Provincial Treasury in opposition
of the relief sought by SNR.
[17] The application is not urgent as there is already a r eview application
which is pending in the same court for the review of the tender. SNR is at
liberty to invoke the discovery processes in terms of Rule 35 and interlocutory
application in terms of Rule 6(1) of the Uniform Rules of Court under the
pending review application.
[18] The application has no merit because the issue raised falls outside the
purview of the Provincial Treasury. The Provincial Treasury does not hold any
constitutional or legislative mandate to issue advisory notices or advisory
directives to private entities or service providers who are not organs of state.
[19] The gist of SNR’s complaint is mainly premised on the provisions of the
Municipal Finance Management Act 56 of 2003 (“the MFMA”) and the
regulations promulgated thereunder. The issues in dispute are also dealt with in
the Supply Chain Management Policy (“SCMP”) of the KSDLM, specifically
sections 108 and 109. These sections also mirror regulation 50 of the Municipal
Supply Chain Regulation as referred to by SNR in the founding affidavit.
[20] The relief sought by SNR is misplaced as regulation 50 is not an internal
remedy within the meaning of PAJA. Also, nothing in regulation 50 and the
KSDLM’s SCMP requires the Provincial Treasury or the independent person to
report to the service provider or aggrieved person. The mandate of the
Provincial Treasury is to provide advisory and monitoring services to organs of
state, and it does not have any power or authority to overrule organs of state or
municipalities in respect of thei r decision -making powers. The role of the
Provincial Treasury is merely to monitor and advise without usurping the
authority of the institutions concerned.
[21] Regulation 50 gives an aggrieved party a choice of either lodging a
dispute in terms of regul ation 50 of launch an application in court. SNR has
opted for the latter with this application. This is despite SNR already having
launched an application for review of the same tender, which application is still
pending.
The law
[22] Regulation 50 provides the following:
‘50. Resolution of disputes, objections, complaints and queries. —
(1) The supply chain management policy of a municipality or municipal entity
must provide for the appointment by the accounting officer of an independent
and impartial person not directly involved in the supply chain management
processes of the municipality or municipal entity —
(a) to assist in the resolution of disputes between the municipality or
municipal entity and other persons regarding —
(i) any decisions or actions taken by the municipality or municipal
entity in the implementation of its supply chain management
system; or
(ii) any matter arising from a contract awarded in the course of its
supply chain management system; or
(b) to deal with ob jections, complaints or queries regarding any such
decisions or actions or any matters arising from such contract.
(2) A parent municipality and a municipal entity under its sole or shared control
may for purposes of subregulation (1) appoint the same person.
(3) The accounting officer, or another official designated by the accounting
officer, is responsible for assisting the appointed person to perform his or her
functions effectively.
(4) The person appointed must —
(a) strive to resolve promptly all disputes, objections, complaints or
queries received; and
(b) submit monthly reports to the accounting officer on all disputes,
objections, complaints or queries received, attended to or resolved.
(5) A dispute, objection, complaint or query may be refer red to the relevant
provincial treasury if —
(a) the dispute, objection, complaint or query is not resolved within 60
days; or
(b) no response is received from the municipality or municipal entity
within 60 days.
(6) If the provincial treasury does not o r cannot resolve the matter, the dispute,
objection, complaint or query may be referred to the National Treasury for resolution.
(7) This regulation must not be read as affecting a person’ s rights to approach a court
at any time.’
[12] The overarching statutory provision, s 7(2) of the P AJA, provides the following:
‘(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative
action in terms of this Act unless any internal remedy provided for in any other law
has first been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any
internal remedy referred to in paragraph (a) has been exhausted, direct that the
person concerned must first exhaust such remedy before instituting pr oceedings in a
court or tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the
person concerned, exempt such person from the obligation to exhaust any internal
remedy if the court or tribunal deems it in the interest of justice.’
[23] Both counsel referred to the case of DDP Valuers (PTY) Ltd v Madibeng
Local Municipality1, a decision of the Supreme Court of Appeal. Central to the
case was regulation 50. The SCA referred to the decision of Reed and others v
The Master of the High Court and others2, in which Plasket J defined the term
‘internal remedy’ when used in administrative law as follows:
‘[T]he composite term “internal remedy” . . . is used to connote an administrative
appeal – an appeal, usually on the merits, to an official or tribunal within the same
1 (233/2015) [2015] ZASCA 146 (1 October 2015).
2 [2005] ZAECHC 5; [2005] 2 All SA 429 (E) para 25.
administrative hierarchy as the initial decision -maker – or, less common, an internal
review. Often the appellate body will be more senior than the initial decision-maker,
either administratively or politically, or possess greater expertise. Inevitably, the
appellate body is given the power to confirm, substitute or vary the decision of the
initial decision -maker on the merits. In South Africa there is no sy stem of
administrative appeals. Instead internal appeal tribunals are created by statute on an
ad hoc basis.’
[24] The SCA went further in paragraph [19] and held that where the dispute
remains unresolved within a period of 60 days, or no response is rece ived from
the municipality within that period, the aggrieved party may refer the dispute to
the relevant provincial treasury, the third respondent in casu, and failing which
it may be escalated to the national treasury. The SCA also held that no
procedure is provided on how these objections and complaints would be
resolved save to state that if the impartial person is unable to resolve the
dispute, the aggrieved party may refer the dispute to the provincial treasury. If
the provincial treasury cannot resolv e the dispute, the complaint or objection
must be referred to the national treasury. The regulation is silent as to how and
by whom the dispute would be resolved at these levels and on further action if
the national treasury has not resolved the dispute.
[25] It is common cause that the matter was referred to the Provincial
Treasury, and that SNR was not provided with the outcome of its objection. It is
also common cause that the SNR did not refer the objection to the national
treasury subsequent to the pr ovincial treasury’s failure to provide the outcome
to SNR.
[26] The SCA held further that the decision of Plasket J in ESDA Properties
(Pty) Ltd v Amathole District Municipality 3 is correct. In this case, the Court
was faced with provisions similar to those of reg 50, i.e. ss 108 and 109 of
Amathole District Municipality Supply Chain Management Policy, 2012, and
held as follows in paras 10-11:
‘In my view it was, for two reasons, not obligatory for ESDA to have first utilised this
mechanism before applying for the review of the award of the tender.
The first is that ss 108 and 109 do not create an internal appeal or review in which the
decision-maker has the power to confirm, subst itute or vary the decision complained of.
Instead, it creates a dispute resolution mechanism in which a person, with no decision -
making powers, is appointed to assist the parties to resolve their dispute, acting, it would
appear, as a mediator or conciliator. This is not an internal remedy contemplated by s 7(2) of
the PAJA. The second reason is that s 109(6) provides in express terms that a party has a
choice of either using the dispute resolution mechanism or approaching a court. In other
words, it does not operate to prevent a party from approaching a court “at any time”.’
[27] The Provincial Treasury relies on the submission that regulation 50 does
not provide an internal remedy because the Provincial Treasury does not have
powers to declare the decisio n of the municipality invalid and set it aside, and
that section 7(2) of the PAJA is not an internal remedy. In DDP Valuers, which
is similar in facts to this case, it was held that “ the appellant as an unsuccessful
tenderer would have been entitled to app eal under s 62. However, the
Municipality had already awarded the contract to the second respondent and
the parties had already signed an agreement to that effect resulting in the rights
accruing to the second respondent. It follows that the appellant coul d not resort
to that procedure in order to comply with s 7(2) of the PAJA.”
to that procedure in order to comply with s 7(2) of the PAJA.”
3 [2014] ZAECGHC 76; 2014 JDR 1878 (ECG).
[28] Similarly, in casu, the KSDLM has already awarded the contract to the
successful bidder. SNR has also not sought to resort to the procedure in order to
comply with s 7(2) of the PAJA.
[29] The Provincial Treasury admits that the internal remedies complained of
have long been overtaken by events and are of no relevance. I agree with this.
This point can not be taken further in the circumstances.
[30] The gist of the refusal o f the Provincial Treasury to provide the report is
that it is not empowered to communicate with private persons or entities, nor
that it has any power or authority to overrule organs of state or municipalities in
respect of their decision -making powers, an d that it reports only to organs of
state. It was also submitted that the role of the Provincial Treasury is to monitor
and advise without usurping the authority of the institutions. No authority was
provided for this assertion by Mr Mayekiso on behalf of the Provincial
Treasury. Instead, he relies on the mandate of his client, being to provide
advisory and monitoring service to organs of state.
[31] The Provincial Treasury further make the assertion that regulation 50
does not set out the manner in which complaints, queries or objections will be
dealt with, and what is clearly stipulated in regulation 50 is that the appointed
person submits monthly reports to the accounting officer of the municipality.
This may be so, but this would defeat the purpose of referring objections to the
Provincial Treasury in terms of the regulation 50 mechanism if the Provincial
Treasury does not communicate the outcome of the objection to the party that
escalated the objection in terms of that regulation. Surely those who
promulgated this regulation did not intend for the provincial treasury to report to
another entity other than the one which referred the objection to it.
[32] The Provincial Treasury admits that it produced an outcome to the
objection and provided it to the KSDLM. The reason for this is that there is no
authority which directs or compels the Provincial Treasury to provide the
outcome of an objection by a complainant. This is despite the fact that it was
SNR which sought the outcome of the objection from the P rovincial Treasury
and not the KSDLM.
[33] SNR escalated the objection to the Provincial Treasury after it was not
satisfied with the outcome of the objection by an independent person. KSDLM
was also provided with the outcome by the Provincial Treasury an d did not
provide it to SNR either. The reasons provided by KSDLM are that it had
provided the outcome of the objection by the independent person and SNR did
not appeal the findings in that outcome, it considered the internal processes
finalised. Although KSDLM is correct on this aspect, the outcome which it
refers to is in respect of the independent person and not the one from the
Provincial Treasury, which these proceedings are about.
[34] KSDLM is cited as a party to these proceedings. However, the reli ef of
providing the outcome to SNR is not sought against KSDLM, but only against
the Provincial Treasury. This is unfortunate because the original objection was
lodged with KSDLM. SNR is also aware that the outcome of the objection by
the Provincial Treasu ry was provided to KSDLM. However, if the Provincial
Treasury produced an outcome to the objection raised by SNR, why not simply
give it to SNR? The answer lies in the response by the Provincial Treasury that
it does not fall within its mandate to communicate with private persons, but only
with organs of state. Surely this defeats the purpose of a private person
escalating an objection to the provincial treasury after it was not satisfied with
the outcome by the municipality. If the provincial treasury can accept an
objection from a private person, it should be able to provide that private person
with the outcome of its objection.
[35] Another compliant by the Provincial Treasury is that the review
application is already pending before this Court, and that SNR has the remedy
of asking for the report from the KSDLM in terms of the discovery procedures
of Rule 35 of the Uniform Rules. At t he time of launching the application, SNR
was not aware that the outcome to the objection had been provided to KSDLM
by the Provincial Treasury. Rule 35 provides for a party to ask for documents or
recordings from a party in whose possession such documents and recordings
are, and which party is known to the one requesting such documents and
recordings. The Provincial Treasury is not a party to the review application, but
the documents can be discovered from the Provincial Treasury in terms of Rule
35.
[36] The Provincial Treasury also submits that the present proceedings are an
interlocutory application ancillary to the pending review application. This
therefore is an alternative to the discovery processes as it relates to the same
review proceedings.
[37] In support of the urgency of the application, SNR submit that the urgency
arises from the continuing unlawfulness of the respondents’ conduct and the
irreparable prejudice suffered by SNR each day that the outcome by the
Provincial Treasury remains withheld. SNR relies on East Rock Trading 7 (Pty)
Ltd v Ekurhuleni Metropolitan Municipality 4, in which it was held that urgency
exists where the delay in relief will perpetuate illegality or render justice
nugatory. The review application is still pending, and it challenges the illegality
which SNR complains of. SNR does have remedies available to it in terms of
Rule 35 in the review application.
[38] SNR further rely on Chung-Fung (Pty) Ltd v Mayfair Residents
Association5, where the court held that urge ncy is established where delay
would perpetuate an ongoing violation of the rule of law or where the redress in
due course would be illusory. The answer to this also lies in the preceding
paragraph.
[39] Lastly, SNR submit that if all else fails, the Cour t should find that
grounds of urgency exist in the interests of justice because of the nature of the
rights involved.
[40] Mr Mayekiso, submitted differently on behalf of the Provincial Treasury.
He submitted that SNR has failed to set out explicitly the circumstances which
render the matter urgent. On this score, he referred to the provisions of Rule
6(12) of the Uniform Rules of Court and Vena and Another v Vena and Others6.
The Provincial Treasury also submits that there is “ no threat, imminent danger
or burning fire which has been outlined ” by SNR in their founding papers to
justify urgency.
4 [2012] ZAGPJHC 176 – para 6.
5 [2003] ZAGPJHC 1162 – PARS 54 and 61.
6 2010 (2) SA 248 (ECP), para 5.
[41] I agree with the Provincial Treasury that SNR has a remedy available in
terms of Rule 35 by way of discovery in the review application, and which SNR
has not exercised. Instead, SNR chose to approach this Court on urgent basis on
a matter that is not urgent at all. The court roll is inundated with litigants who
seek access to justice, and who have to wait for their turn to have their matters
heard. For the above reasons, the application must therefore fail.
[42] On the issue of costs, SNR submitted that costs should be awarded in its
favour, if it is successful in the application, such costs to include the costs of
two advocates on scale C, except for on the day of the application being heard,
as only one advocates appeared before Court. Mr Ndamase submitted that this is
a highly complicated matter which required the involvement of two advocates.
Mr Ndamase also submitted that, should the application not be de cided in
SNR’s favour, the court should have regard to the Biowatch principles on the
advancement of constitutional rights of SNR, and that each party pays its own
costs. The Court does not agree that the Biowatch principle finds application in
this case.
[43] Mr Mayekiso disagreed with this and asked that SNR pays the costs of the
application if it does not succeed in the application. He also argued that this is a
simple matter which did not require the use of two advocates. The Court agrees
with this. SN R should have exercised and may still exercise its options in the
pending review application in terms of Rule 35 to acquire the outcome from the
KSDLM, which is in possession of the outcome to the objection. This right in
terms of Rule 35 can also be exerc ised against the Provincial Treasury because
SNR knows that the outcome is in possession of the said document.
Order
Accordingly, the court makes the following order:
1. The application is dismissed.
2. The applicant shall pay the costs of the application.
DV PITT
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicant : Adv B Ndamase
Instructed by : Dyushu Makebe Inc
East London
Counsel for the Respondents : Adv Mayekiso
Instructed by : State Attorney
East London
Heard on : 11 November 2025
Date judgment delivered : 13 November 2025