IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU)
Case No: 18144/23
In the matter between
DACK DEVELOPMENT (PTY) LTD APPLICANT
AND
GEORGE LOCAL MUNICIPALITY
RESPONDENT
Date of Hearing : 28 August 2025
Date of Delivering : 02 February 2026
__________________________________________________________________
JUDGMENT
__________________________________________________________________
THULARE J
ORDER
(a) The applicant is granted leave to file a supplementary replying affidavit as
duly set forth under the fo unding affidavit and the supplementary replying
affidavit is speci fically and fully incorporated into the applicant’s original
replying affidavit and is admitted into the record as an integral and
substantive part of the record.
(b) The respondent, should it so decide, is afforded an opportunity to file an
affidavit or affidavits, in response to the supplementary replying affidavit
within 10 days from the date of this order.
(c) The applicant to pay the costs occasioned by this application, including the
costs of counsel on scale C.
[1] This is an urgent opposed application for condonation of the late filing of the
replying affidavit and leave to be granted leave to file supplementary replying
affidavit, that the supplementary affidavit be accepted by the court as if specifically
and fully incorporated int o the applicants original replying affidavit and that the
supplementary affidavit be admitted into the official court record as an integral and
substantive part thereof and that the respondent be afforded an opportunity, if
required, to file an affidavit i n response to the supplementary affidavit within a
period to be determined by the court and that the costs of the application be costs
in the cause of the review application save in the event of opposition in which
event the respondent be ordered to pay the costs. The application was inadvertently
marked as disposed of as opposed to outstanding on my personal records. This was
occasioned by the initial intention to immediately issue the order with reasons to
follow, and the later decision to reserve the judgment in total to deal especially
with the legal principles applicable which informed the decision at once soon
thereafter. The delay occasioned thereby is regretted.
[2] The application arose after the applicant observed that there were substantive
and procedural deficiencies in its original replying affida vit which failed to
adequately and comprehensively traverse the material averments raided in the
respondent’s answering affidavit. According to the applicant the deficiencies were
not attributable to any failure on the part of the applicant but rather stem from the
incapacitation of the former legal representative , whose medical condition
materially prejudiced the applicant’s ability to place a complete and comprehensive
response before the court. According to the applicant, no new factual allegations or
evidence were introduced . The affidav it merely expanded and the respondent
would not suffer any undue prejudice . The interests of justice demanded that the
applicant be afforded a fair opportunity to place is full case before the court
particularly where its failure to do so earlier was not due to its fault or delay but
due to exceptional and unforeseen circumstances affecting its erstwhile legal
representatives.
[3] The erstwhile attorney suffered from severe medical condition which limited
communication and consultation with the applicant , was largely unreachable and
unable to provide the necessary legal advice and guidance which had a material
impact on the conduct of the applicant’s case as the erstwhile legal representative
was lately unresponsive and unavailable. When the new legal representatives made
a review of the litigation record, they concluded that the answering affidavit did
not meaningfully address the lawfulness of the administrativ e actions challenged ,
particularly the conversion of the lease application process into a competitive bid
process; the procedural fairness of the respondents bid evaluation and tender
cancellation which was not adequately scrutinized in the original replying affidavit;
the respondents inconsistent application of lea se policies, particularly concerning
similar lease applications granted without requiring a public bidding process and
the respondents reliance on certain statutory provisions and policies to a llegedly
justify its administrative actions that were legally indefensible.
[4] In its reply, the applicant disputes the authority of the deponent of the
respondents answering affidavit to engage in litigation. It points out that the
respondent did not f ile a copy of the resolution of the municipal council
authorizing the deponent to oppose the proceedings on the respondent’s behalf. The
applicant’s case is that in the absence of a valid and lawful written proof delegation
in terms of section 59(2)(b) of the Municipal Systems Act the deponent lacks the
requisite authority. The deponent statement that he was delegated the authority is
vague, unsupported and legally insufficient. It was also impermissible for a
deponent to rely on second-hand information unless such information was
substantiated by documentary evidence, direct involvement or confirmatory
affidavits from those officials who provided the information . The confirmatory
affidavit of Mr Gelderbloem did not confirm the acc uracy of any broader factual
assertions of the deponent as it confirmed only specific written communications
that were attached to the answering affidavit and the founding affidavit. The
confirmatory affidavit did not attest to the correctness of facts sou rced from other
municipal officials. The denial that the respondent acted unlawfully was a legal
conclusion and not factual evidence. The basis of affidavits in motion proceedings
must be direct, firsthand knowledge of the facts and where reliance is on
information sourced from others, such sources mut file confirmatory affidavits that
provide substantive and detailed support. The portions of the deponent’s affidavit
based on inadmissible hearsay stood to be disregarded for failing to meet the
evidentiary threshold required for admissibility in motion proceedings. The
respondent did not establish compelling justification for the admission of hearsay.
The answering affidavits did not disclose the full and unredacted recor ds, on the
documents that the respondent sought to rely, records to which the applicant was
denied access. The respondent lacked what was required in decision -making, to
wit, being transparent and verifiable as part of the municipality’s duty of
accountability and procedural fairness, which was inconsistent with its obligations
under section 195(1) of the Constitution which required it to be accountable,
transparent and responsive.
[5] The applicant sought to amend its prayers to en sure greater specificity, clarity
and alignment with the legal and factual basis of the application. The applicant was
never informed that the lease would be subjected to a bidding process . The
respondent failed to follow the correct statutory process before ch anging the
procedure, and this caused the third-party interest in the matter. The applicants case
is that the decision to initiate a bidding process was unlawful as it failed to comply
with the requirement of section 14(2) of the Local Government Municipal Finance
Management Act (LGMFMA) which required the respondent to demonstrate that a
property was no longer ne eded for service delivery before it could be leased or
disposed of; Regulations 34 of the Municipal Asset Transfer Regulations , 2008,
which provided that municipal property may only be leased through a competitive
process where it was in the best interests of the public and required a Council
resolution justifying such a decision and the respondents Immovable Property
Policy, which prescribed a clear procedure for leasing municipal property and
allowed for direct lease application s under certain conditions. The applicant
alleged that it was the only party with a legally recognized interest in leasing the
property at the time of its application. The respondent failed to finalise the lease
application and instead arbitrarily converted the process into a public bid without
lawful authority. This decision was procedurally unfair, irrational and inconsistent
with the respondents own policies.
[6] Amongst others, the applicant also took issue with the answer of non-joinder.
The applicant’s case is that it was under no obligation to join tenderers as this
application concerns the lawfulness of the respondents decision -making process
and not the individual rights of the bidders. The central issue being the
administrative conduct of the respon dent and not the outcome of the tender . The
tender was ultimately cancelled and no rights accrued to any bidder and no bidder
has challenged the respondent’s decision nor sought to intervene in these
proceedings. The respondent itself did not seek that joinder.
[7] In opposition to the application, the respondent requested the court to allow
evidence contained in the deponent to the respondent’s affidavit relating to
documentation in the municipal files under his control as the Acting Municipal
Manager. The respondent is also of the view that the proposed supplementary
replying affidavit constituted serious abuse of process by reason of its prolixity and
that it is replete with legal argument, extensive quotations from legislation,
revisited issues already dealt with in the replying affidavit, raised new issues
including those pursuant to the amendment of its notice of motion which were not
relevant anymore. The respondents are also of the view that the application had no
reasonable prospects of success for a variety of reasons including that the applicant
did not immediately challenge the bidding process but participated in it until it lost
and only then ch allenged it The decision of council for a competitive bidding
process was the exercise of executive powers and not administrative powers, and
not reviewable under the Promotion of Administrative Justice Act, 2000 (PAJA)
and that the application was time-barred.
[8] Rule 6(5)(e) of the Uniform Rules of Court provide:
“6 Applications
5 (e) Within 10 days of the service upon the respondent of the affidavit and documents referred
to in sub -paragraph (ii) of paragraph (d) of subrule 5 the applicant may deliver a replying
affidavit. The court may in its discretion permit the filing of further affidavits.”
For purposes of this judgment, I did not deem it necessary to deal with the totality
of the reasons advanced by the applicant and the responses of the respondent
thereto. An application for the filing of a supplementary replying affidavit must be
approached in the light of all the issues raised and, with the quest to ensure a
proper adjudication [Dickison v South African General Electric Co (Pty) Ltd 1973
(2) SA 620 (A) at 628F]. Proper adjudication would ordinarily require an answer
by the applicant to all relevant matters raised by the respondent. Adjudication of an
application of this nature blends two principles, to with (1) that litigants on motion
or in proceedings instituted by petition should not be encouraged to present their
cases in a piecemeal fashion, and (2) a Court should not allow an adjud ication of
the real issues in a case to be partially frustrated by too rigid an adherence to what
is essentially a rule of practice[ Bader and Another v Weston and Another 1967 (1)
SA 134 (C) at 138D]. The overriding B consideration, in my view, is that the Court
which is ultimately called upon to adjudicate upon the merits of the dispute should
have before it all the relevant facts [Cohen No v Nel and Another 1975 (3) SA 963
(W) at 970B]. The point taken by the applicant, of hearsay, and whether the court
should admit the hearsay evidence required proper ventilation in the application for
a court to do justice to the parties. The weight of the request by the respondent that
the evidence upon which it relies, should find favour with the cou rt in admission,
turns the request into a substantive contribution in the factors that a court must
consider, and that weight is in favour of the applicant . This court has already
indicated its view on how a party intending to rely on hearsay evidence needed to
approach its application in motion proceedings [Compregen (Pty) Ltd v Lezmin
2021 (Pty) Ltd and Others (866/2023) [2024] ZAWCHC 284 (27 September 2024
at para 11] . The question whether the 26 November 2021 decision of the
respondent that the lease of its premises should be dealt with by means of a
competitive bidding process was administrative or was the exercise of executive
power which was not reviewable under PAJA require d careful attention. If it was
an administrative decision, the next question is whether the respondent acted in the
manner expected within our constitutional democracy. So is the meaning of the
word approved. The question whether it related to the competitive bidding process
or to the applicant’s lease of the property , and the consequent disclosure of the
necessary documents in relation thereto. I am persuaded that a proper ventilation of
the issues demands the admission of the supplementary replying affidavit. For
these reasons I am making the order.
___________________________
DM THULARE
JUDGE OF THE HIGH COURT