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[2026] ZAKZPHC 5
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Mhlongo Transcoin Security Services (Pty) Ltd v Municipal Manager and Others (2025-207287) [2026] ZAKZPHC 5 (20 January 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
Case
No: 2025-207287
In
the matter between:
MHLONGO
TRANSCOIN SECURITY
SERVICES
(PTY)
LTD
APPLICANT
and
THE
MUNICIPAL MANAGER
FIRST
RESPONDENT
THE
UMKHANYAKUDE DISTRICT
MUNICIPALITY
SECOND RESPONDENT
CALVIN
& FAMILY SECURITY SERVICES
(PTY)
LTD
THIRD RESPONDENT
ONSELE01
SECURITY SERVICES
(PTY)
LTD
FOURTH RESPONDENT
MSENGE
PROTECTION
SERVICES
(PTY) LTD
FIFTH RESPONDENT
MAKHULUKHULU
WORKS
(PTY) LTD T/A
MAKHULUKHULU
PROTECTION
SIXTH
RESPONDENT
ORDER
The
following order is made:
1.
The application is dismissed.
2.
The applicant is ordered to pay the
costs of the first and second respondents for both the urgent
application and the determination of the final review on scale C.
3.
Such costs shall include the costs
consequent to the employment of two counsel where so employed.
JUDGMENT
Siwendu
J:
Introduction
[1]
This urgent application was brought on 11 November 2025 by the
applicant, Mhlongo Transcoin Security
Services (Pty) Ltd (Mhlongo
Transcoin), a private company which provides security services, and
has its principal place of business
in Kokstad, KwaZulu-Natal. At the
time, Mhlongo Transcoin sought an interim interdict and other
ancillary relief against the first
respondent, Dr Siyabonga Robson
Ntuli (Dr Ntuli), in his capacity as the Acting Municipal Manager of
the second respondent, the
uMkhanyakude District Municipality (the
Municipality).
[2]
Calvin & Family Security Services (Pty) Ltd, Onsele01 Security
Services (Pty) Ltd, Msenge Protection
Services (Pty) Ltd, and
Makhulukhulu Works trading as Makhulukhulu Protection, are security
companies who were cited as the third
to sixth respondents,
respectively. Other than Dr Ntuli, who deposed to an affidavit on
behalf of the Municipality opposing the
relief sought by Mhlongo
Transcoin, the remainder of the respondents did not oppose the
application.
[3]
Mhlongo Transcoin counts among its clients the Municipality and
previously provided security services
to the Municipality. It appears
that a procurement dispute arose concerning the award of tender SCMU
19/2018/2019, which related
to the provision of security services at
the Municipality’s offices, wastewater treatment works, water
treatment works, fire
services, Thusong Centre, as well as the
provision of VIP Protection Services for the northern and southern
regions.
[4]
Mhlongo Transcoin instituted proceedings under case number 6729/2022
and, on 9 June 2022, obtained an
order by consent against the
Municipality. In terms of that order, tender SCMU 19/2018/2019 was
awarded to Mhlongo Transcoin for
a period of 36 months, at a contract
value of R36 640 800 (excluding VAT).
[5]
Although the order was granted by consent, it compelled the
Municipality to provide Mhlongo Transcoin
with a service level
agreement (SLA) in respect of the tender within 20 days of its grant.
The SLA was duly concluded, in terms
of which Mhlongo Transcoin
provided security services at 34 municipal sites, deploying
approximately 89 security guards. The SLA
was to commence on 1 August
2022 and terminate on 31 July 2025.
[6]
In June 2025, the Municipality delivered a letter notifying Mhlongo
Transcoin of the imminent termination
of the 36-month contract
awarded pursuant to the court order. However, on or about 31 July
2025, the Municipality extended the
service contract for a further
period of three months, commencing on 1 August 2025 and terminating
on 31 October 2025.
[7]
Parallel to the execution of the above contract, and prior to the
notice of termination issued to Mhlongo
Transcoin, the Municipality
advertised a tender for the appointment of a panel of service
providers to provide security services
and VIP protection for a
period of 36 months. This tender was advertised in February 2024
under bid number SCMU 015/2023/2024.
[8]
On 8 August 2024, the Municipality published a notice of Intention to
Award Bids under bid number SCMU
015/2023/2024, to 26 security
service providers. On 26 August 2024, Mhlongo Transcoin was formally
informed that its bid was successful
and that it had been appointed
to the panel for a period of 36 months. It accepted the appointment
in writing on 10 September 2024,
as required by the letter of
appointment. The appointment was expressly made subject to the
conclusion and signing of an SLA, in
accordance with the General
Conditions of Contract, 2010, as promulgated by the National
Treasury.
[9]
Mhlongo Transcoin alleges that on 31 October 2025, it was instructed
to vacate the sites previously
allocated to it and was informed that
the Municipality intended to hand over those sites to the third to
sixth respondents, while
requiring it to ‘share’ five of
the sites with them. At the time, the exact details were unknown, and
the request for
information made by Mhlongo Transcoin’s
attorney on 31 October 2025 to the Municipality and the Municipal
Manager went unanswered.
It states, however, that it was informed
that the Municipality would not follow a formal competitive
procurement process, as it
intended to utilise security guards from
companies already appointed to the panel of service providers. It
alleges the arrangement
was to remain in place until the expiry of
the panel appointments in 2027.
[10]
The urgent application was issued on 3 November 2025 and served on
the Municipality and the Municipal Manager
by electronic mail. It was
also served on the sixth respondent 4 November 2025 by the Sheriff
but not on all the respondents. The
respondents were afforded until
Wednesday, 5 November 2025, to indicate their intention to oppose the
application, and until 6
November 2025 at 16h30 to deliver their
opposing affidavits. As previously stated, only the Municipality and
Dr Ntuli oppose the
application.
[11]
Although the Municipality and Dr Ntuli had filed a ‘preliminary
answering affidavit’ on 11 November
2025, the matter was not
ripe for hearing. There was no replying affidavit by Mhlongo
Transcoin. The truncated period for the filing
of answering
affidavits was thereafter extended by a court order to 21 November
2025. The Municipality subsequently filed a supplementary
affidavit,
and the applicant was granted leave to file its replying affidavit on
or before 25 November 2025. The application was
thereafter adjourned
for hearing on 1 December 2025.
The
relief
[12]
Mhlongo Transcoin’s case changed substantially between the
launching of the urgent application and the hearing.
Initially, its
primary complaint was directed at the decision to appoint the third
to sixth respondents as security service providers
for the sites
previously guarded by it.
[13]
As Part A of the application, it sought an interim interdict
restraining the Municipality from implementing or
proceeding with the
appointment of security guards or security services, whether in terms
of a notice of award of bids, monthly
contracts, or monthly invoices,
in respect of the sites previously guarded by it, pending the
determination of Part B, which it
construed as ‘a legality
review’.
[14]
In Part B, it sought a final order in the following terms:
(a)
declaring the decision to appoint the third
to sixth respondents in respect of the sites previously
guarded by
the applicant, and any agreements concluded pursuant thereto, to be
constitutionally invalid, unlawful, and set aside;
(b)
directing the disgorgement and repayment of
any amounts paid by the Municipality to the third to sixth
respondents pursuant to such appointments;
(c)
ordering the Municipality to conduct a
points-scoring evaluation of each member of the existing security
services panel and to allocate work on the basis that preference be
given to the highest-scoring tenderer on the panel; and
(d)
directing the Municipality to pay the costs
of the application, including the costs occasioned by the
urgent
application.
[15]
Prior to the hearing on 1 December 2025, Mhlongo Transcoin amended
its relief. It claims the amendments were precipitated
by the
averments in the preliminary and answering affidavits. It
consolidated the orders previously sought in Parts A and B and
now
seeks a final order:
(a)
setting aside the decision to appoint the
fourth respondent as a security service provider for the
sites
previously guarded by the applicant; and
(b)
restraining the Municipality from
implementing or proceeding with the appointment of security guards
or
security services, whether in terms of a notice of award of bids,
monthly contracts, or monthly invoices, in respect of the
sites
previously guarded by the applicant.
[16]
Ancillary to this relief, Mhlongo Transcoin seeks:
(a)
an order setting aside any agreement
concluded between the Municipality and the fourth respondent pursuant
to the deviation process;
(b)
an order directing the disgorgement and
repayment of any amounts paid by the Municipality to the fourth
respondent pursuant to the appointment and implementation of such
agreement; and
(c)
an order directing the Municipality to
conduct a points-scoring evaluation of each member of the existing
security services panel and to allocate work on the basis that
preference be given to the highest-scoring tenderer on the panel.
[17]
The material change introduced by the amended relief in the replying
affidavit is that Mhlongo Transcoin now c
hallenges
the appointment of Dr Ntuli and whether he is the lawful Acting
Municipal Manager t
o bring the case on behalf of the
Municipality
. It correctly did not persist with
the challenge at the hearing which ought to have been brought in
terms of Uniform rule 7. The
only dispute brought under Uniform
Rule 7 pertained to the authority of the attorneys acting on behalf
of the Mhlongo Transcoin,
which was not pursued after requisite
authority was confirmed.
[18]
Mhlongo Transcoin disputed
the validity and/or
lawfulness of the Municipality’s Supply Chain Management Policy
2024/2025 (SCM Policy) on the grounds
that the Municipality failed to
establish whether the policy was adopted by a resolution of the
municipal council or that notice
thereof was published in the
Government Gazette
.
It now
impugns the decision taken on 20 October 2025, pursuant
to a procurement deviation process in clause 37 of the SCM policy to
appoint
the fourth respondent. The order declaring that decision
constitutionally invalid and unlawful, and the prayer to have the
appointment
set aside, are materially premised on these complaints.
[19]
The respondents did not oppose the amendment of the relief. They
expressly abandoned their initial opposition based
on urgency
grounds. However, they opposed the application on the basis that
Mhlongo Transcoin’s contract, which was entered
into pursuant
to the court order referred to above, terminated by effluxion of
time. Dr Ntuli alleges that the extension of the
contract after its
expiry will be the subject of an internal investigation, as the
Municipality cannot account for the reasons
for the extension.
[20]
The Municipality alleges that there were ‘serious
irregularities’ arising from the contract concluded
with
Mhlongo Transcoin pursuant to the court order. Although the court
order stipulated a total contract price of approximately
R36 million
over the 36-month period, the Municipality paid approximately
R84 million, representing an increase of more
than 131% above
the contract value.
[21]
According to Dr Ntuli, Mhlongo Transcoin was contracted to provide 33
security guards; however, municipal records
reflect that it had been
billing the Municipality for 78 security guards from September 2022
onwards. No records could be found
authorising either the increase in
the contract price or the increase in the number of security guards
from 33 to 78. These allegations
are the subject of the
investigation.
[22]
The Municipality avers that on or about October 2024, following the
tender, and the publication of the appointment
of the 26 security
companies referred to above, it selected the third, fourth, fifth,
and sixth respondents from the panel to provide
security services at
municipal sites that were not being serviced at the time. It based
the selection on the price criterion, as
reflected in their bid
documents. The companies on the panel submitted their quotations for
security services based on the ordinary
flat rate prescribed by the
Private Security Industry Regulatory Authority (PSIRA) for the
provision of security guards, rendering
their bids cost-effective.
[23]
It agreed that it decided to appoint any of the panel members to
provide security services at the sites previously
serviced by Mhlongo
Transcoin on a short-term basis. It contended that the panel often
services a frequent urgent need for security
and VIP protection
services, either at construction and infrastructure project sites or
at municipal offices during periods of
protracted strike action.
Thus, the panel of 26 entities, of which Mhlongo Transcoin is a part,
is for use on a needs and emergency
basis.
The
procurement of the fourth respondent was thus on a short-term basis
pending the completion of the Municipality’s internal
processes
and was adopted to mitigate the risk of potential harm.
[24]
In essence, the Municipality does not deny that, on or about 30
October 2025, it appointed the fourth respondent,
by way of a
procurement deviation process, to provide security services at the
sites previously serviced by Mhlongo Transcoin for
a period of two
months, from 1 November 2025 to 31 December 2025. It claims the
appointment is sanctioned by clause 55 of the SCM
policy which
permits it to appoint service providers from the duly constituted
panel. Its stance is that security services
constitute an
essential service, and that the absence thereof would render the
Municipality and its infrastructure vulnerable on
multiple levels.
The deviation is permissible in terms of the SCM policy.
[25]
Part of
Mhlongo Transcoin
’s
complaint, however, was that the value of the contract far exceeded
the R200 000 threshold contained in the SCM Policy
for 2022/2023, as
well as the R300 000 threshold in the current SCM Policy, and that
this issue was not addressed in either of
the answering affidavits.
The prevailing paragraph 14
(d)
(i)
of the SCM Policy expressly requires a competitive bidding process
where the estimated transaction value exceeds R300 000 (VAT
included).
[26]
It criticised the Municipality’s failure to plan, contending
that this could not constitute a lawful
justification for invoking a
deviation or for relying on the essential nature of security services
to circumvent a structured procurement
process. It disputed that the
provision of security services is an essential service and contended
that the appointment was made
in violation of s 217 of the
Constitution and the Local Government: Municipal Finance Management
Act 56 of 2003 (MFMA). The submission
was that the Municipality
conceded this, and the consequence is that the fourth respondent was
appointed without a competitive
procurement process, and the
violation is neither justifiable nor excusable.
Issues
for determination
[27]
Since the matter had secured a preferential hearing date following
the order of 11 November 2025, and the
respondents did not oppose the
urgency of the application, urgency was no longer a live issue for
determination. As already stated,
Mhlongo Transcoin’s initial
complaint was directed at the decision to appoint the third to sixth
respondents as security
service providers for the sites previously
guarded by it and it sought other ancillary relief related to their
appointment.
[28]
Although the amendment of the relief was not opposed by the
respondents, Mhlongo Transcoin introduced a new
basis for its
legality challenge in its replying affidavit after it received the
answering affidavit, directed at the decision
to appoint the fourth
respondent by utilising the procurement deviation process.
[29]
Counsel for Mhlongo Transcoin emphasised during argument that its
review is aimed at enforcing compliance
with s 217 of the
Constitution and the MFMA. The review thus raises several anterior
legal and procedural questions consequent
on the way Mhlongo
Transcoin categorised the application as being a legality review and
the final nature of the relief it seeks.
[30]
It is necessary to correctly: (a) determine Mhlongo Transcoin’s
legal basis to bring the review, (b)
establish whether it has
locus
standi
to mount the challenge, and thereafter, (c) consider the
merits of the review and whether Mhlongo Transcoin has made out a
case
for the final interdict. As will appear in the judgment, it is
not necessary to decide the merits of the review.
Legal
basis for the review
[31]
Counsel for Mhlongo Transcoin contended that it has the right to
bring a legality review to enforce the Municipality’s
compliance with s 217(1) of the Constitution, the provisions of the
MFMA and the SCM policy. The criticism by the respondents is
that
Mhlongo Transcoin disregarded the legislative framework enacted to
give effect to the provisions of s 217 of the Constitution
and sought
to rely directly on the constitutional provision in breach of the
principle of subsidiarity and the Promotion of Administrative
Justice
Act 3 of 2000 (PAJA). In addition, the respondents complain that
Mhlongo Transcoin has ‘especially eschewed reliance
on PAJA’.
[32]
The approach adopted by Mhlongo Transcoin requires this court to
restate the settled legal position. It is
so that our law has
developed two streams of review, one based on the principle of
legality and the other on PAJA. The Constitution
recognises
municipalities as a distinct sphere of government with original
powers. In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
,
[1]
the Constitutional Court explained the nature of municipal powers and
distinguished between legislative and administrative actions.
[33]
When a municipality exercises its plenary legislative powers, such as
making by-laws or setting rates and
taxes, it is performing a
legislative function. These actions are not administrative action and
therefore do not fall within the
scope of PAJA. They may only be
challenged on constitutional grounds, such as legality or
rationality.
[34]
However, when a municipality applies or implements
legislation or by-laws in specific cases, its conduct constitutes
administrative action. In this regard, the Supreme Court of Appeal
(SCA) in
Overstrand
Municipality v Water and Sanitation Services South Africa (Pty)
Ltd
,
[2]
confirmed that the procurement, appointment, and award of tenders for
municipal services is administrative action.
[35]
Counsel for Mhlongo Transcoin contended that it seeks to protect its
right to the constitutionally sanctioned
fair and transparent
procurement process. Indeed, the genesis of the interdict was the
appointment of the fourth respondent to
the sites previously guarded
by Mhlongo Transcoin. Despite it being settled law that the
procurement of goods and services constitutes
administrative action,
Mhlongo Transcoin directly relied on a breach of s 217(1) of the
Constitution.
[3]
The
respondents’ objection is well-founded. The principle of
subsidiarity finds application, it having been iterated by the
Constitutional Court in
My
Vote Counts NPC v Speaker of the National Assembly and Others
[4]
that:
‘…
a
litigant cannot directly invoke the Constitution to extract a right
he or she seeks to enforce without first relying on, or attacking
the
constitutionality of, legislation enacted to give effect to that
right. This is the form of constitutional subsidiarity
Parliament invokes here. Once legislation to fulfil a constitutional
right exists, the Constitution's embodiment of that right
is no
longer the prime mechanism for its enforcement. The legislation is
primary. The right in the Constitution plays only a subsidiary
or
supporting role.’ (Footnote omitted.)
[36]
It is indeed so that Mhlongo Transcoin also relied on the MFMA,
dealing with the procurement of goods and
services, and the
obligation of each municipality to have and implement a supply chain
management policy, which gives effect to
a fair, equitable,
transparent, competitive and cost-effective procurement system, to
impugn and impeach the decision by the Municipality
appointing the
fourth respondent and the deviation process through which it was
appointed.
[37]
The provision imposes an obligation for the development of a supply
chain management policy. To this end,
Mhlongo Transcoin relied on an
unlawful deviation, and a breach of the mandated threshold of
R200 000, which was more than
the permissible value of the
contracts sanctioned by the SCM policy (whether in the amount of R200
000 or R300 000). As will be
seen later in the judgment, it is
unnecessary to enter the debate to determine the issue in this case.
[38]
For now it is sufficient to reinforce what has been expressed in
several decisions, including the SCA decision
in
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[5]
that ‘[w]
hile
it is true that the principle of legality is constitutionally
entrenched, the constitutional enjoinder to fair administrative
action, as it has been expressed through PAJA…’
[39]
M
hlongo Transcoin could not directly rely on a breach
of s 217 of the Constitution or the MFMA. Secondly, to the extent
that it alleges
there was an unlawful deviation, the correct pathway
was to bring the review under any of the grounds listed in s 6(2) of
PAJA,
which gives effect to s 33 of the Constitution. The
finding brings to the fore the second anterior question of
locus
standi
.
Locus
standi to bring the review challenge
[40]
As confirmed by its counsel, Mhlongo
T
ranscoin
brought the interdict as an own interest litigant. This brought to
the fore the liminal inquiry of its
locus
standi,
generally
decided first without reference to the merits.
[6]
As
locus
standi
is a mechanism for access to the court directly controlled by the
court, the issue was raised
mero
motu
with
counsel, based on the Constitutional Court’s decision in
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd
,
[7]
which stated 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]
…
[35]
Hence, 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.’
[41]
The majority judgment of the Constitutional Court in
Areva
NP Incorporated in France v Eskom Holdings SOC Ltd and Others
[8]
affirmed the principle espoused in
Giant
Concerts
and held that a court ‘should, as a general rule, dispose of
the matter without entering the merits and that it should only
enter
the merits in exceptional cases or where the public interest really
cries out for that’.
[42]
The connection between PAJA and the dictum in
Giant
Concerts
[9]
is evident. Had Mhlongo Transcoin brought the review under PAJA, it
would still have been required to establish that the decision
taken
by the Municipality has a direct external effect on its rights or
interests to bring it within the definition of administrative
action,
as set out in s 1 of PAJA. That is a jurisdictional requirement for a
review.
[43]
It is clear from the principles that Mhlongo Transcoin has no broad
legal standing to litigate against procurement
irregularities or
illegalities unless it demonstrates that the decision to appoint the
fourth respondent affects its interests
or legal rights. In the
parlance of the authorities referred to above, that right or interest
cannot be inferred but must be demonstrated
from the facts of the
case. Mhlongo Transcoin has not pleaded a case to demonstrate its
rights or interests which have been affected.
[44]
On the contrary, it did not dispute that the contract for the
security services, which it subsequently procured
by means of a court
order in June 2022, came to an end by effluxion of time. It did not
allege that the contract was unlawfully
terminated. Moreover, Mhlongo
Transcoin did not dispute the legitimacy of the constitution of the
panel of security service providers
or that it remains a member of
the panel of security service providers from which the Municipality
may select as and when required
from time to time.
[45]
Notwithstanding that the respondents allege there is a dispute of
facts on the papers in respect of which
SCM policy applies, the
breach of the threshold mandated by the SCM policy is patent from the
papers, but that averment alone is
not sufficient to demonstrate a
decision which has a direct or external effect on the interest or a
right accruing to Mhlongo Transcoin
without more.
[46]
As the respondents contend, there appears to be an assumption that
Mhlongo Transcoin will resume servicing
the sites that it did prior
to 31 October 2025. I agree that there is no legal basis on which it
can claim any entitlement to be
retained to provide services for
those sites after the contract has run its course nor can it claim a
right to contract with the
Municipality. The failure to demonstrate a
right or an interest means it lacks the requisite
locus standi
to bring the review. This alone is dispositive of Mhlongo Transcoin’s
case. The conclusion is inescapable that without a
demonstrable right
or interest (for its
locus standi
), and/or an allegation of a
decision which has a direct and external effect on its rights,
Mhlongo Transcoin would not have met
the requirement of a clear right
entitling it to a final interdict.
[47]
Although the above finding is dispositive of the review, I am
duty-bound to highlight two additional factors
material to the
determination of the review, as evident from the papers. The first is
the undisputed averment by the respondents
that the appointment of
the fourth respondent expired on 31 December 2025, albeit through a
deviation process in breach of the
threshold value. As pointed out at
the hearing, any relief setting aside the appointment would have been
rendered moot by the time
of handing down judgment.
[48]
The second element pertains to the ripeness of the review and the
duty to exhaust internal remedies. Paragraph
48 of the 2023/2024 SCM
Policy, on which Mhlongo Transcoin relies, provides for dispute
resolution and states that:
‘
48.
Resolution of disputes, objections, complaints and queries
…
(2)
The accounting officer must appoint an independent and impartial
person, not directly involved in the supply chain management
processes to assist in the resolution of objections and complaints
between the municipality and any other person regarding:
a)
the implementation of the procurement process in terms of the supply
chain management system; or
b)
any matter arising from the implementation of the procurement process
in terms of the supply chain management system.’
[49]
On the other hand, the 2024/2025 SCM Policy, on which the respondents
rely, provides for dispute resolution
mechanisms.
(a)
Clause 50 deals with objections and complaints in respect to the
implementation of the supply
chain and states that:
‘
persons
aggrieved by decisions or actions taken in the implementation of this
supply chain management system may lodge within 14
days of the
decision or action, a written objection or complaint to the
municipality against the decision or action.’
(b)
Clause 51(1) deals with dispute resolutions and states that:
‘
The
accounting officer must appoint an independent and impartial person,
not directly involved in the supply chain management processes
to
assist in the resolution of objections and complaints between the
municipality and any other person regarding –
(a)
to assist in the resolution of disputes between the municipality and
other persons regarding-
(i)
any decisions or actions taken in the implementation of the supply
chain management system…’
In
my view, Clause 48 (2) the 2023/34 SCM policy on which Mhlongo
Transcoin relies contemplates a similar dispute resolution mechanism.
[50]
Although not squarely raised at the hearing, it is worth noting that
litigants in tender disputes, which
constitute administrative action,
frequently approach the courts without first exhausting internal
remedies. In doing so, they
often overlook the distinction
articulated in
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd
and Other
[10]
between
common-law review and review under PAJA. In
Dengetenge,
the
court held that:
‘
At
common law a party aggrieved by an administrative decision was not
generally obliged to exhaust internal remedies before approaching a
court on review. Where internal remedies are provided for, the choice
was that of the aggrieved party either to pursue those remedies
before going to a court of law or to proceed directly to seek the
review of the offending decision in court. The promulgation of
PAJA
has changed all this. It is now compulsory for an aggrieved party to
exhaust internal remedies before approaching a court
for review,
unless such party is exempted from this duty by a competent
court.’ (Footnote omitted.)
[51]
Having found that the appropriate pathway for the review was PAJA,
and not a legality review, s 7(2)(a) of
PAJA applied. Mhlongo
Transcoin was therefore required to exhaust internal remedies and to
avail itself of the legislated dispute-resolution
procedure before
approaching this Court for final relief. That obligation arose
irrespective of which SCM policy prevailed.
Conclusion
[52]
For the reasons stated above, Mhlongo Transcoin is not entitled to a
final interdict and the ancillary relief
it seeks: first, it
misconstrued the basis on which to premise the review in law; and
second, it lacks
locus standi
to broadly vindicate procurement
irregularities on grounds of illegality. It has failed to demonstrate
that the decision to appoint
the fourth respondents has a direct
external effect on its rights or interests or on any other grounds
cognisable under PAJA.
Costs
[53]
With regard to costs, there is no reason why the usual rule that
costs follow the result should not apply.
As to the appropriate scale
of the costs, I take into account (a) the haste with which the urgent
application was brought, (b)
the truncated periods afforded to the
respondents to file their papers, (c) the applicant’s
persistence in seeking final
relief in circumstances where the
pathway to relief was not properly considered and its legal rights
and interests not clearly
demonstrated, and (d) the failure to pursue
the dispute-resolution mechanisms provided for in the applicable SCM
policy.
[54]
In the result, I make the following order:
1.
The application is dismissed.
2.
The applicant is ordered to pay the
costs of the first and second respondents for both the urgent
application and the determination of the final review on scale C.
3.
Such costs shall include the costs
consequent to the employment of two counsel where so employed.
NTY
SIWENDU J
Heard
on: 1 December 2025
Delivered
on: 20 January 2026
Appearances
For
the applicant:
R
F DeVilliers with S M Van Vuren
Instructed
by:
Kally
& Co Inc
Locally
represented by:
Stowell
and Company
For
the respondent:
C
J Pammenter SC with M Mazibuko-Mudau
Instructed
by:
Nompumelelo,
Hadebe Inc
Locally
represented by:
Ngwane
Attorneys
[1]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998]
ZACC 17; 1999 (1) SA 374 (CC).
[2]
Overstrand
Municipality v Water and Sanitation Services South Africa (Pty) Ltd
[2018] ZASCA 50
;
[2018] 2 All SA 644
(SCA) para 35, which refers to
the Constitutional Court’s decision in
S
teenkamp
NO v Provincial Tender Board, Eastern Cape
[2006]
ZACC 16
;
2007 (3) SA 121
(CC) para 21.
[3]
The provision states that ‘(1) When an organ of state in the
national, provincial or local sphere of government, or any
other
institution identified in national legislation, contracts for goods
or services, it must do so in accordance with a system
which is
fair, equitable, transparent, competitive and cost-effective’.
[4]
My Vote Counts NPC
v Speaker of the National Assembly and Others
[2015] ZACC31;
2016 (1) SA 132
(CC) para 53.
[5]
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[2013] ZASCA 148
;
[2013] 4 All SA 639
(SCA) para 36.
[6]
C Hoexter and G Penfold
Administrative
Law in South Africa
3 ed (2021) at 676
[7]
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
[2012]
ZACC 28
;
2013 (3) BCLR 251
(CC)
(Giant
Concerts).
[8]
Areva
NP Incorporated in France v Eskom Holdings SOC Ltd and Another
[2016]
ZACC 51
;
2017 (6) SA 621
(CC) para 41.
[9]
Giant
Concerts
para
41.
[10]
[2013]
ZACC 48
;
2014 (5) SA 138
(CC) para 115: