,.' . . ..
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 2025/027504
( l) REPORT ABLE: NO
(2) OF INTEREST TO OT . = • •
(3) REVISED.
In the matter between:
23 January 2026
DATE
HEAD OF DEPARTMENT OF THE GAUTENG
DEPARTMENT OF ROADS AND TRANSPORT
MEMBER OF THE EXECUTIVE COUNCIL
OFGAUTENG
V
PUTCO (PTY) LTD
JR CHOEU EXPRESS CHLOORKOP CC
TRUSTEES FOR THE TIME BEING OF THE
IPELEGENG TRANSPORT TRUST
GAUTENG COACHES (PTY) LTD
• - • Y.
First Appl icant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
2
NORTH WEST STAR SOC LTD Fifth Respondent
TRUSTEES FOR THE TIME BEING OF THE Sixth Respondent
ASIBEMUNYE TRANSPORT TRUST
TRUSTEES FOR THE TIME BEING OF THE LEKOA Seventh Respondent
TRANSPORT TRUST
ATTERIDGEVILLE BUS SERVICES SOC LTD Eighth Respondent
TSHWANE RAPID TRANSIT (PTY) LTD Ninth Respondent
JOHANNESBURG METROPOLITAN BUS Tenth Respondent
SERVICES SOC LTD
MOOLLAS TRANSPORT SERVICES CC Eleventh Respondent
AMOGELANG TRANSPORT SERVICES Twelfth Respondent
ARBITRATION FOUNDATION OF Thirteenth Respondent
SOUTH AFRICA
LWANDILE SISILANA N.O. Fourteenth Respondent
MEC FOR GAUTENG TREASURY & ECONOMIC Fifteenth Respondent
DEVELOPMENT
This judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email and by upload to CaseLines. The date
and time for hand down is deemed to be 10h00 on 23 January 2026
3
______________________________________________________________
JUDGMENT
______________________________________________________________
S VAN NIEUWENHUIZEN AJ
[1] This matter came to me as a special opposed motion on 16 October
2025. The matter concerns a self -review application by the applicants
in which t hey claim as Part A of their Notice of Motion the following
relief:
“1. The ordinary forms and service provided for in the Uniform Rules of
the High Court are dispensed with and Part A of this application is heard
on an urgent basis in terms of the provisions of Uniform Rule 6(12) (a).
2. Pending the final determination of Part B of this application
determination of any appeals):
2.1 The 1st to 12th respondents are interdicted and restrained to render
the subsidised bus services in terms of the negotiated June 2023
contracts above the budget and subsidy amount/s allocated in terms of
the Public Transport Operating Grant by the National Department of
Transport ("PTOG");
2.2 The Department of Roads and Transport, Gauteng shall only be
liable to pay the first to twelfth respondents subsidy payments arising
from services rendered in terms of the negotiated June 2023 contracts
from the subsidy amounts as per the PTOG allocation.
2.3 The dispute referred for arbitration by the 1
st respondent before 13th
and 14th respondents are stayed including any other disputes that may
be referred by any of the respondents for dispute resolutions in terms of
clause 41 of the negotiated 2023 contracts.”
4
[2] The aforesaid relief is opposed by all the respondents except for the
following: the tenth respondent filed a notice of intention to abide by the
court’s findings. The 7
th and 9th respondents filed answering affidavits
which were replied to by the applicants.
[3] The matter was referred for case management and as a consequence
I was called upon to hear relief pursuant to two Rule 30A notices aimed
at obtaining a full record of documents from the applicants for purposes
of the self-review application.
[4] The applicants to the rule 30A applications refer to the applicants in the
main matter collectively as the Department and I will follow the same
nomenclature.
The Department’s approach
[5] To understand the Department’s dilemma fully, it is necessary to briefly
set out its approach to the self-review application. The deponent to the
founding affidavit does so on legal advice and in his capacity as Head
of Department and consequently also wears the cap of “accounting
officer” as defined in section 1 read with section 36 of the Public
Finance Management Act 1 of 199 (“the PFMA”). He was only
appointed to the post on 1 February 2023 and as of necessity cannot
speak to events occurring prior to his appointment. For such historic
events he relies on documents under his control.
5
[6] He states that:
“I have in my possession, and under my control, the documents which
are relevant for purposes of the adjudication of this application. I
confirm that, prior to me signing this founding affidavit, I again
acquainted myself fully and comprehensively with the contents of the
aforementioned documents.”
[7] Where he rel ies on information from other persons, he refers to their
confirmatory affidavits and as for the rest he relies on legal advice.
[8] On the aforesaid basis he is of the view that the impugned decisions he
refers to in Part “A” of the relief should be reviewed and be set aside .
As already stated, this involves urgent and drastic relief to interfere with
the so-called PTOG payments and a pending arbitration in this regard.
[9] In Part “B” of the relief the Department seeks to:
“… review and set aside the Contracting Authority's ("CA")
interchangeably referred to herein as the department's decisions to
enter into 15 (fifteen) negotiated contracts in terms of section 41(1)(b)
of the National Land Transport Act, 5 of 2009 ("NLTA") wi th the first to
twelfth respondents ("the Respondents") on the basis that the contracts
are unconstitutional, unlawful and invalid as they were concluded in
contravention of the law and are irrational.”
[10] Whichever way one views it the relief sought is far-reaching and drastic.
As will become clear this is more so since the PTOG payments and
ensuing contracts were not entered into willy nilly and on the face of it
after thorough consultation and negotiation,
6
[11] The aforesaid was not preceded by a competitive bidding process but
under authority of a deviation from normal procurement processes
based on legal advice. T his is of course no novelty, but what is
allegedly problematic is that the negotiation process resulted in the
budget availability for subsidies payable being materially insufficient to
cover the agreed and contracted services.in contravention of section
38(2) of the PFMA. The seriousness hereof to all concerned cannot be
overestimated.
[12] This follows from the following:
12.1 T he matter involves fundamental principles of legality
stemming from the Constitution and associated legislation;
12.2 The Department is enjoined by the Constitution and the rule of
law to promote efficient economic effective use of resources
and bears a high standard of accountability in this regard;
12.3 The Department must foster transparency and where it has
taken decisions inconsistent with the Constitution and the law ,
it is obliged to approach the Court for self -review. In its own
words it states that same is required to foster accountability and
is in the interest of the public. From my perspective because
this country has a Constitution every organ of state must abide
by same and lip-service or reliance on legislative authorities’
7
views are not always reflective of true governance under the
rule of law;
12.4 The binding contracts if not reviewed and set aside will result
in Gauteng Provincial Treasury having to fund a R7 billion
budget shortfall from taxpayer money which is allegedly neither
available nor affordable;
12.5 T he Department attempted to regularise the bus contracts and
adopt an open market approach to issue new contracts to the
market and allow for market participation;
12.6 For this purpose, it published tender number DRT35/11/2019
on 15 October 2021, so that service providers could be
obtained to provide subsidised bus services in terms of section
42 of the National Land Transport, Act 5 of 2009 (“the NLTA”);
12.7 However, this process was interdicted by way of court process,
which resulted in the Department being unable to conclude the
tender process. I should add that this is only half the version
put forward by the Department and that the final failure of this
tender involved a withdrawal of support of the tender process
by the National Government as well and that t he 1
st
Respondent (“Putco”) failed in a counter – application the detail
of which is on the face of it irrelevant for present purposes;
8
12.8 The Departmen t relied on s41(1)(b) of the NLTA after this
tender process failed;
12.9 In the financial year 2020/21 four conditional grants were
transferred to provinces and municipalities by the National
Department of Transport, one of which is the PTOG ( Public
Transport Operations Grant);
12.10 The capital and running expenses incurred by the contracting
parties are massive and the state’s credibility in adhering to
procurement contracts ostensibly legally entered, is at stake;
12.11 The whole issue of the PTOG payments has a long and
contentious background;
12.12 In 2023 a “ Grow Gauteng Gauteng Together ” plan was
apparently hatched by undisclosed persons;
12.13 This plan apparently reflects the government's national and
provincial objectives of the bus transportation in the public
transport industry and its impact on the Gauteng Provincial
economy;
12.14 Historically, there have been 32 subsidised bus contracts
operated by 13 bus operators, funded from the PTOG, under
the Division of Revenue Act (DORA);
9
12.15 These contracts were operated in 3 Gauteng Metropolitans
(City of Johannesburg, City of Tshwane, and City of
Ekurhuleni) as well as at the Sedibeng District Municipality.
Since inception the contracts were extended more than 76
times and were found to be irregular by the Auditor-General of
South Africa ( “the AGSA”) as most, if not all subsidised bus
contracts have been extended on a short -term basis since
2003;
12.16 In addition, the AGSA concluded that the contracts were
irregular on the basis that he continuous extension of the bus
contracts violated Supply Chain Management provisions as
these extensions have exceeded the 15% threshold of the
value of the original contracts. Apparently, findings, relating to
non-compliance with section 41 and 42 of the NLTA were also
made in as much as there was a failure to introduce new
contracts to regulate bus related public transport operations;
12.17 A n attempt to address the irregular nature of the aforesaid
contractual arrangements ( as well as the poor performance
against the contracts ) followed by negotiation with bus
operators (guided by Section 41(1)(b) of the NLTA);
12.18 The need to have “sought the assistance” of the Gautrain
Management Agency (“the GMA”). The Department signed a
10
Service Level Agreement with the GMA to negotiate the terms
of the contracts. The relevant agreement is annex “FA16”;
12.19 The Preamble to this agreement reads inter alia as follows:
“WHEREAS Section 11 of the National Land Transport Act (No
5 of 2009) ("NLTA") empowers the Province of Gauteng, acting
through its Department of Roads and Transport, to continue
performing the function of the contracting authority for certain
subsided service contracts, Interim contracts, current tendered
contracts and negotiated contracts affecting Gauteng and
which were concluded prior to the date of commencement of
the NLTA;
AND WHEREAS the MEC has instructed the Department to, In
terms of Section 41 of the NLTA, enter into negotiated contracts
with operators providing subsidised bus services within and to
Gauteng before 31 March 2023:
AND WHEREAS section 4(dA) of the GMA Act allows the GMA
to “
in consultation with the MEC, assist or act on behalf of any organ of
state, when so requested, in realising its integrated public transport and rail
related objectives and in protecting its interests and managing the assets,
finance and financial securities of such organ of state";
AND WHEREAS the MEC has, In terms of section 4(dA) of the
GMA Act, agreed that the GMA may assist the Department In
the programme and project management of the entering into
such negotiated contracts; ……”
12.20 Clause 1.31 specifically states that the Preamble forms part of
the Agreement;
12.21 The Department expected the GMA to support the Department
providing it with p rogram management support, financial
modelling, and commercial expertise in the negotiation of
contracts and financial modelling. I accept implicitly at this
11
stage of the proceedings that the GMA possessed the
necessary skills to provide such services;
12.22 Given that the previous negotiated contracts were ending in
June 2024 decisions were to be made as to whether contracts
considered to be irregular by the AGSA are to be extended or
what other steps could be taken to ensure an uninterrupted
service. For these purposes legal opinion was sought and on
the strength of same section 41(1)(b) of the NTLA was relied
on together with the delegation to the GMA;
12.23 The GMA was required to negotiate with the bus operators to
ensure that the negotiated terms of the contracts are lawful and
would be covered by the available budget which was already
known to the GMA; (the GMA’s state of knowledge is clearly of
some importance);
12.24 The negotiation team consisted of members from various
sections headed by the GMA as per the SLA. The negotiations
were predicated on legal advice which firmly recommended
that section 41 of NLTA could be followed and that there were
then, justifiable reasons for the Department to deviate from the
normal procurement processes;
12.25 Subsequent to the negotiations of the contracts, it was noted
that while section 41 of the NLTA authorises the Department to
12
conclude the negotiated contracts, it was not consistent with
the PFMA, Treasury Regulations and section 217 of the
Constitution in so far as the procurement of services
requirements relating to transparency, fairness,
competitiveness and cost - effectiveness. To this end, the
negotiation team having considered the legal advice obtained,
resolved to prepare a request for a deviation from normal
procurement processes;
12.26 This r equest for a deviation, in terms of National Treasury
PFMA SCM Instruction Note 3 of 2021/2022 is attached to the
founding affidavit as annex FA19. This 20 -page document
provides a valuable oversight explaining the history and
predicament of the Department;
12.27 The Department was of the view that an appropriate case for
deviation was made out but for the fact that:
“…. it was imperative that the negotiated contracts should be
intra vires the deviation in all the material respect. Notably,
clause 5.1 of the deviation memorandum dealing with costs
implications, emphatically stated that the budget allocation
including the escalations is subject to the amount that the
National Department of Transport will make available to the
department on an annual basis.”;
12.28 It is alleged that the negotiated contracts were negotiated
inconsistent with clause 5.1 of the deviation memorandum in
that the contracts exceeded the budget as allocated by the
13
National Department of Transport by creating a material
shortfall of R7 billion over the seven- year period. The legal
reasons herefore are at present irrelevant given that I am only
concerned with the extent of documentation disclosed for the
self-review application;
12.29 It is nevertheless clear that at the time the Department did not
have the budget for the contract value it had agreed upon nor
did the national government budget for same in advance.
Based on a subsidy of 63% of the total cost the subsidised bus
contracts for public transport operations required an average of
R3,4 billion per annum and an approximate R29 billion over a
seven-year period;
12.30 The explanations offered in paragraphs 63 and 64 of the
founding affidavit are woefully inadequate as to how the service
contracts came to be concluded (assuming the contents set
above to be correct) and understandably leave the Rule 30A
applicants in the air;
12.31 All the other explanations and serious allegations against Putco
may well be relevant when the Department’s application for
relief is heard but same cannot be achieved until such time as
the Department has placed all relevant documents before
court. National Treasury as the source of the R22bn
approximate budget might also have to be heard on the topic. I
14
assume for the moment that its budget has a rational basis and
any court hearing this matter might well be interested in the
rationale for same;
12.32 Be that as it may I now turn to the applications in terms of Rule
30A to establish whether the information sought is required.
[13] Any application for self-review will require the Department to explain in
full how it came to find itself in this position and its duty of disclosure to
the court is of the highest possible nature so that court is ultimately
placed in the best possible position to assess whether the application
of self-review has merit or should be declined (or whether there is scope
for just and equitable relief under the Constitution if required). That such
disclosure and provision of reasons could never rest on the mere say
so of the officials of the state organ alone is a matter of inevitability. The
most detailed and scrupulous examination of this state organ’s conduct
will have to be conducted to establish if it is deserving of condonation
of its alleged breach of the rule of law. It will of necessity require full
disclosure by the Department and is agent, the GMA.
[14] I do not dwell on the various contracts awarded to the respondents.
The need to disclose same is as obvious as is the need to explain how
the award of the contracts came about. Fortunately, it is not my task to
decide whether what appears to be a serious breach of the rule of law
was indeed such. My tas k is to ensure that it places sufficient
information before the court to enable the parties who seek relief in
15
terms of rule 30A can meaningfully engage with the Department and
that the documentation disclosed traverses the relevant areas of
enquiry encompassing a self-review application fully.
[15] Before I direct my attention to the specific complaints of the rule 30A
applicants it is necessary to consider t he background to the contracts
and establish the level of disclosure required in matters such as these
and thereafter to establish if the Department fell short of the legitimate
requirements of disclosure necessary for a self -review or not in the
context of the complaints raised by the rule 30A applicants.
The Rule 30A applications
[16] Prior to these applications being launched and on 5 March 2025 the
Department lodged a “ Rule 53 Record” of some 156 pages which
seems to consist of the documents it thought it should provide for the
self-review. Its use of rule 53 “seems” to be voluntary and given that a
record of some nature would be required I see no difficulty with it
adopting such methodology. The use of rule 53 although seemingly
voluntary as will be touched upon is in my view rational and probably
obligatory.
[17] The 4
th respondent, Gauteng Coaches (Pty) Ltd (“Coaches”) lodged its
rule 30A notice on 7 March 2025 on the basis that the Department has
failed to comply with rule 53 in that:
16
they have failed to lodge with the Registrar of the above Honourable
Court, the full and complete record of the decisions which resulted in
the impugned decisions referred to in paragraphs 2.1 and 2.2 of Part A
of the Notice of Motion and paragraphs 1 and 2 of Part B of the Notice
of Motion.”
[18] This notice also stated that:
“……. unless the First and Second Applicants remedy their aforesaid
non-compliance with the Uniform Rules of Court, the Fourth
Respondent intends, after the lapse of two (2) calendar days from the
date of service of this Notice, to apply to the above Honourable Court
for an order, among other things, (i) condonation for non- compliance
with the time periods of rule 30A given the intended hearing date of the
application, (ii) compelling the First and Second Respondents to
comply with the provisions of Rule 53 of the Uniform Rules of Court and
(iii) holding in abeyance any application for relief under Part A of the
Notice of Motion until such time as the full and complete record of the
impugned decisions has been delivered and the fourth respondent has
been afforded an adequate opportunity to file its answering affidavit.”
[19] Coaches followed same up with a conditional application to compel ,
fearing enrolment and seeking condonation to the extent its own r ule
30A notice was out of time, and seeking the full record of impugned
decisions which shall at least include the following:
“3.1 The Intergovernmental Authorisation Agreements and other
mandates obtained from the City of Tshwane, City of Johannesburg,
City of Ekurhuleni, and the Sedibeng District Municipality.
3.2. The minutes of the meeting held with the municipalities regarding
the conclusion of the negotiated contracts.
3.3. The Gauteng Department of Roads and Transport responses to
bus operators, 5 October 2022.
3.4. The Compliance Report submitted to the Head of Department.
3.5. The Negotiation Framework prepared by the Technical Team.
17
3.6. The inputs received from operators in response to the draft
contract.
3.7. The opinion attached to the Deviation Memo, dated 30 June 2023.
3.8 All documents reflecting the Department's negotiations with
individual operators.
3.9. The documents that record how the Department determined the
rates and kilometres per negotiated contract and overall.
3.10. The documents that record the basis on which the Department
issued Award Letters to the bus operators - containing the kilometres
and rates per operator - before the Deviation Memo was approved and
signed.”
[20] Coaches was provided with:
“1. Award Letters;
2. Compliance Report;
3. Determination Rates;
4. Deviation Memo;
5 Framework;
6. IGAA:
7 Inputs from Operators;
8. Minutes of Meetings with Municipalities;
18
9 Response to the Bus Operators”
[21] Coaches during argument made it clear that they are only proceeding
with the relief sought in paragraph 3.2, 3.6, 3.8, and 3.9.
[22] It is immediately clear that the Rule 53 record is inadequate in at least
the respects listed in the previous paragraph.
[23] I have been provided with numerous decisions emphasizing the
importance of a rule 53 record in the context of PAJA and self-reviews.
[24] Coaches argued that the r ule 53 record should include every scrap of
paper.
1
[25] It submitted that the Department seeks what can only be described as
“unusual interim relief. It asks the Court to interdict the bus operators
from rendering services "above the budget and subsidy amount(s)
allocated in terms of the [PTOG]". In effect, the Department wants it
both ways: it seeks to preserve the operation of the negotiated
contracts to avoid any disruption in bus services, while simultaneously
seeking to amend them unilaterally by significantly reducing the
remuneration payable, to align with its assessment of the applicable
budget limits”
[26] Another valid complaint is that:
”It also seeks declaratory relief that its liability to pay under the contracts
is limited to the subsidy amounts. This relief is inherently defective. The
PTOG is a global amount, and the Department has not explained how
1 See Mamadi and another v Premier of Limpopo Province and others 2023 JDR 2828 (CC)
paragraph 36.
19
this would be divided across twelve individual contracts, mainly since
each contract contains different rates and route allocations. There may
also be operational differences. More fundamentally, the Department
seeks to compel operators to provide the same services, but at a lesser,
unilaterally imposed rate. And, at these lesser undisclosed rates, a bus
operator cannot assess whether it can still operate without making a
loss..”
[27] Coaches also submits quite rightly in my view that:
“Even if the Department succeeds in establishing a case for interim
relief, and even if the Honourable Court is prepared to overlook the
material deficiencies in the formulation of the relief sought in the notice
of motion, it would still be necessary to determine how the globular
PTOG allocation should be divided among the fifteen contracts. That
exercise cannot be done in the abstract. It would require a proper basis
for understanding why certain routes were assigned higher rates than
others, something that is only possible with access to the full record.”
[28] It also adds that the interim relief for present purposes should be
regarded as final relief. It is trite that relief in the format sought by the
Department as interim relief is in its effect final.
2
[29] It also emphasises that Mr Mdadane is the central party signing service
contracts but demonstrates no rule 53 record which shed light on why
the contracts were concluded on the terms that they were and
importantly, very little that explains the Department's process prior to
the conclusion of the contracts.
[30] Over and above the aforesaid critical information is missing. Gauteng
Coaches, and the other operators, cannot be expected to respond to
2 Cf Radio Islam v Chairperson, Council of the Independent Broadcasting Authority, and
Another1999 (3) SA 897 (W) at pp 910-912.
20
the Department's review grounds meaningfully, nor to engage with the
question of just and equitable relief, in the absence of a complete
record. This it argues is more serious given the Department's
unexplained delay in launching the application: if it knew or ought to
have known of the unlawfulness in June 2023, why did it wait more than
a year and a half to take action? The submission was that the Court is
now being asked to grant extraordinary relief without being told what
went wrong, and, to the extent possible, is being denied crucial
evidence that would allow a just and equitable remedy.
[31] It also alludes to a pattern of partial and half-hearted disclosure and the
fact that Mr Mdadane nowhere clearly and unequivocally state states
that all documents in his possession and under his control have been
disclosed.
[32] T here are clear and troubling gaps. The current record provides no
explanation of the rationale for the impugned decisions, no internal
assessments, no financial analysis, no determination of the rates
offered, and no indication of how the Department concluded that the
contracts fell within budget. Coaches submits that t he absence of this
material undermines both the fairness of the proceedings and the
credibility of the Department's case. How a court has to adjudicate a
self-review involving the service providers is beyond comprehension
[33] Letters written to the Department to resolve the problematic nature of
the record also failed to assist.
21
[34] The First, Third and Sixth respondents (for the sake of simplicity
referred to as Putco collectively) lodged their rule 30A notice on 19
March 2025 on the basis that the department has failed to comply with
rule 53 in similar terms to that of Coaches. Putco elaborated on the
Department’s failures by alleging that the following should have been
included in the r ule 53 record of decision although not necessarily
limited to such documents:
“1. All letters, emails, and other written correspondence exchanged
between the applicants and each of the respondents during the
negotiation process, resulting in the conclusion of the Negotiated
Contracts in June 2023, including:
1.1 all documents reflecting the Department's negotiations with
individual operators;
1.2. the documents that record how the Department determined the
rates and kilometres per negotiated contract and overall; and
1.3 the documents that record the basis on which the Department
issued Award Letters to the bus operators - containing the kilometres
and rates per operator - before the Deviation Memorandum, dated 30
June 2023, was approved and signed:”
[35] The Department responded as follows hereto:
“1.1 The document requested in paragraph 1.1 constitutes an
impermissible use of the provisions of Rule 53 in that the said document
is not connected to nor was it a factor in the decision taken by the First
Applicant to conclude negotiated contracts in excess of the available
budget. Furthermore, the request is too broad and general, and the
22
inclusion thereof in the Rule 53 record will unnecessarily burden this
application.
1.2 The documents relating to paragraphs 1.2 and 1.3 are contained in
the supplementary Rule 53 record and the reply to Rule 35(12).”
[36] Since Putco no longer persists with the relief pertaining to “ 1.1” no
further comment is required. It does persist with the relief in “1.2.” The
response to “ 1.2” is clearly inadequate. A proper response to a
document required under Rule 53 should be properly referenced and
not described in the way the Department did. Putco is enforcing the
relief sought in terms of rule 30A and not under rule 35(12). The latter
documents provided by and purport ing to be the rule 53 record in
relation to the impugned decisions and contracts forming the subject of
the review application on 5 March 2025. These did not cor respond to
the relief sought in “1.2” which was only sought on 19 March 2025. The
response to rule 35(12) also did not respond hereto given that what was
sought under this rule were documents referred to in the Department’s
founding affidavit and not disclosed.
3
[37] I refer to Putco’s rule 30A notice insofar as it persisted with same in
argument during the hearing of the matter.
[38] “2. All letters, emails, and other writte n correspondence exchanged
between the applicants and the Provincial Treasury relevant to the
Negotiated Contracts concluded in June 2023 regarding:
3 See REPLY TO FIRST, THIRD AND SIXTH RESPONDENTS' NOTICE IN TERMS OF
RULE 30A read with Heyns Founding Affidavit par 8.
23
2.1. the allocation and utilisation of the Public Transport Operations
Grant (the PTOG) in the applicants' assessment of the supplementary
budget available for subsidised public transport;
2.2. the amounts of the PTOG that were not used during each year and
therefore refunded to the Provincial Treasury;
…………
3. All letters, emails, and other written correspondence, as well as
agendas, minutes and other written records of meetings, in the
applicants' possession regarding:
3.1. the allocation of the PTOG between all the respondents;
…………..
3.3. the budget available for subsidised public transport; and
3.4. the applicants' affordability assessment.
…………
7. The Department's response to annexure "FA22", in terms whereof
the Auditor- General requested a response to the findings made against
the Department in the Auditor-General's report for 2023/2024.
8. Assurances relating to the funding and available budget provided by
the applicants and the Gauteng Management Agency to any of the
respondents during the negotiation process.
……….
10. All discussions, decisions and resolutions taken by the applicants
relating to the conclusion of the Negotiated Contracts in June 2023 and
the negotiated rates and mileage”.
[39] The relief sought in paragraph 2 read with 2.1 and 2.2 of the said notice
can hardly be contentious. This is even more so given its view that the
24
PTOG is not the correct starting point.
4 Heyns, the deponent to Putco’s
affidavits, pointed out on behalf of Putco that the amount of the PTOG
funding is only intended to supplement the amounts that the p rovince
pays to the bus operators. On its own, it is not sufficient to run an
effective subsidised public bus service.
[40] It is for that reason that Putco initiated litigation in October 2024 and
demonstrated that if the PTOG alone is paid it would result in
irreparable harm to Putco, its employees and passengers. There is no
point in rehashing the content of par 38 of Heyns affidavit here. The fact
of the matter is that under the service contract more than the PTOG is
payable (by implication the Department should also contribute to the
subsidy) which it seems determined not to do. This point is further
demonstrated by Putco in par 35-36.
[41] Paragraph 3 of the so- called van der Schyff - judgment makes it
perfectly clear that the transport provided by Putco is subsidised by the
Department. The PTOG is the portion subsidised by National
government. The subsidised portion of bus fee from both National and
Provincial s ources permi ts lower bus fees for Putco’s passengers.
Once this is understood the relief sought in par 3 read with 3.1, 3.3 and
3.4 of the same notice follows logically.
4 See par 37.
25
[42] The same logic dictates that the relief in par 7, 8 and 10 in the rule 30A
notice should be granted. This encompasses documentation which
must of necessity exist and casts light on the record of decision and will
ensure what is termed equality of arms as between the Department and
Putco. Should this documentation not be forthcoming the Department
and GMA will be enabled to conceal its real role in the decision -making
process.
[43] As matters stand it hides behind the GMA (its agent) and should
account for its agent’s and its own conduct in entering into the service
contracts. Neither the Department nor GMA on its behalf could not have
known the limitations to the PTOG with a concomitant duty to subsidise
the contracts resting on the Department.
[44] In addition, nothing in the NLTA suggests that a province will not also
be expected to subsidise a portion of subsidised service contracts. This
notion is ultimately accepted by the Department as pointed out by
Heyns on behalf of Putco.
[45] Putco’s evidence clearly suggests that an affordability analysis
underpinned the rates per kilometer, and the number of scheduled
kilometers Putco was to operate, as well as what the Department could
afford within its available budget.
[46] As stated, the Department claimed that no rule 53 record is required in
a self -review application, notwithstanding the fact that it correctly
26
accepted and undertook to provide a rule 53 record not only for part B
but also part A of the relief it seeks.
5
[47] The Department also seems not to differentiate between relevance
under rule 35(12) as opposed to rule 53. Putco quite correctly relies on
the fact that r elevance is assessed in relation to the decisions sought
to be reviewed and is not limited to the case pleaded in the founding
affidavit.
[48] The correspondence referred to in par 42 and further of Putco’s affidavit
also demonstrates the dire need for the rule 53 record to be amplified
by the documents requested in Putco’s rule 30A notice.
[49] The Department also raised the novel complaint that the record is
becoming too voluminous and burdening the court record. Heyns deals
with these notions effectively in par 50.1 and 50.2 of his affidavit. A less
meritorious defence is hardly imaginable once the relevance of a rule
53 record is borne in mind and adhered to, not to mention the need to
assist the Court as to how the failure in the rule of law came about in
the utmost transparent way.
[50] It is important to note that the Department’s original rule 53 record
comprised less than 300 pages. Since the Rule 30A applications were
5 See par 30, its sub numbers and par 31. ; In any event the content of par 27 and 28 of
Putco’s affidavit demonstrates why a different approach by the Department would be
wrong.
27
launched various other documents were made available. This
demonstrates that the r ule 30A notices were necessary. After
complaints by the applicants and other parties a further 6000 pages
were made available. This reflects poorly on the Department. After the
applicants’ delivery of their rule 30A notice a further 186 pages became
available. It also demonstrates the need for a suitable costs order.
[51] Putco persists in an assertion that the documents were supplied
haphazardly despite the Department’s denials..
[52] Putco also raises in its replying affidavit the case management meeting
with the D JP and the Department’s failures to adhere strictly to the
prescribed timelines. Its answering affidavit was filed late ( although
preceded by an unsigned version which was one day late). In addition,
various unsigned documents were uploaded on 2 July 2025 on
Caselines described as “Additional Documents” An updated Index was
only served on 2 July 2025. The documents disclosed under rule 35(12)
and rule 35(3) were at the date of filing of Putco’s replying affidavit still
not properly paginated despite undertakings to the contrary provided at
the case management meeting.
[53] Putco contends prejudice in that all the aforesaid would have been
done before at the time of filing of the Department’s answering affidavit
and the timeframe for the filing of Putco ’s replying affidavit was
calculated on this basis. The documents provided electronically as a
series of electronic folders were organised in a confusing manner and
28
had under various folders a series of nested folders. I do not intend to
list all the complaints. It is nevertheless clear that the Department did
not comply with the case management
[54] Putco could not discern whether any of its requests were complied with
or not. It also submitted that the Department has not established a
proper factual dispute. I agree with this statement. Putco also denies
the claim that the documents it sought were provided as stated by the
Department.
The need for the Rule 30A Notices and the Application pursuant to the
Case Management Meeting with the DJP
[55] The applications to compel were obviously necessary. The original
application for self -review hardly disclosed any information regarding
the decision- making process. Even after wading through the initial
attempt to comply with rule 53 (300 pages allegedly provided out of
cordiality under the rule rather that recognition of its onerous duties to
the courts, parties to subsided bus service o r duty of accountability
under the rule of law as encapsulated in the Constitution) one is hardly
the wiser. This the Department claimed was all the relevant
contemporaneous documents in respect of the conclusion of 15
different contr acts with 12 different bus operators, including internal
memoranda, opinions, emails, correspondence, and minutes of
meetings. The suggestion that the aforesaid was a full disclosure of the
documents forming the record of decision is an obvious improbability.
29
[56] The department’s obvious failure to comprehend the above obligations
must have led it to the conclusion that the job is done. It overlooks t he
Constitutional Court’s approach that the Rule 53 record is an invaluable
tool in the performance of the review-court's function, because it sheds
light on what happened and serves to give the lie to unfounded ex post
facto justification of the decision under review i n giving support to the
decision- maker's stance.
6
[57] The Department’s position is even worse given that 18 months after the
contracts were concluded (i.e. when the Department first attempted to
bring its review application in December 2024), the Department
apparently sought to deny that it conducted an extensive affordability
process, motivated Provincial Treasury to fund the June 2023
contracts, or made various assurances to the o perators regarding the
Department's ability to pay . in accordance. with t he terms of the June
2023 contracts.
[58] In addition, the Department has been providing unconvincing and
changing reasons for its refusal to provide the documentation . For
reasons best known to itself it is of the view that rule 53 does not apply
to self -review applications. This is so nonsensical that it requires no
debate. Another reason was that the documentation sought is not
relevant. I only need to point out that despite the alleged irrelevancy,
6 See Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC)
para 37.
30
the last tranche of documents another 186 documents came to light
albeit by imperfect and inappropriate means.
[59] The final straw is the assertion that the burden of production would be
too onerous for the Department. Th0e latter excuse should in my view
never be tolerated under our Constitution. No amount of paper (whether
electronically or otherwise provided) is ever too much to be processed
by a hard-working lawyer in a system governed by the rule of law as it
stands under our Constitution. From my humble perspective it is a red
flag showing up the existence of either an incompetent bureaucracy or
the certain sign of a lazy lawyer.
[60] The aforesaid excuses were never relied upon in the Department’s
answering affidavit . On the contrary, the defences raised in the
answering affidavit suggest that the documents sought are already
provided or simply do not exist. Putco has dropped large components
of its Rule 30A notice precisely because the documents became
available after the notice were filed.
[61] The complaints of operators and other parties to the review revealed a
further 6 600 pages (to be found in Caselines section 9 and 11) and as
referred to, even there after another 186 pages in Additional Records
were made available. The bulk of the latter were only provided with the
departments answering affidavit filed on 2 July 2025. The aforesaid
does not strike me as being transparent and frank from the outset nor
the behaviour a state organ should display when it seeks self -review,
31
having breached the rule of law on its own admission and it seems to
be self-evident that one of such breaches was its own failure to assume
the duty to budget for a short-fall in the PTOG and shouldering its own
burden.
[62] The applicants and the Gauteng Province (“the Province”) are not able
to provide public -transport services themselves. The June 2023
contracts (which the applicants are trying to set aside) are, therefore,
the manner in which the applicants and the Province discharge their
constitutional and statutory obligations (including under the NLTA to the
public. These obligations appear to be substantial.
[63] I only refer to the assertions made by Putco and Asibemunye as
examples. Putco allegedly transports 130000 passengers per day and
Asibemunye 800 passengers per day. These passengers include
commuters travelling to and from work, as well as students and learners
who are reliant on this mode of subsidised public transport. The
transport provided in terms of the June 2023 contracts enables
members of the public to exercise various other constitutional and
statutory rights (including the right to education, to employment, their
rights to freedom of movement and association, as well as autonomy –
which the courts have held is a component of the right to dignity.
[64] To this end, the transport provided by the operators is subsidised by
the applicant pursuant to the June 2023 contracts. As a result of the
32
subsidy from the applicants, the operators' passengers pay a reduced
fare for their transport.
[65] These services are provided primarily to people living in low - income
areas in Gauteng (and Mpumalanga) and have apparently been reliant
hereon for decades.
[66] Of even more importance is the fact that the applicants and the
Province are not able to provide public-transport services themselves.
The June 2023 contracts are, therefore, the manner in which the
applicants and the Province discharge their constitutional and statutory
obligations (including under the National Land Transport Act 5 of 2009)
to the public.
[67] P rior to the conclusion of the June 2023 contracts, the Department
expressly confirmed with Putco that the rates per kilometre and the
number of scheduled kilometres Putco was to operate, had been
calculated in accordance with 'an affordability analysis" as well as what
the applicants could afford within -its available budget. From July 2023
until June 2024, the applicants duly paid the operators the amounts due
under the June 2023 contracts.
[68] Thereafter the applicants attempted impermissibly to reduce the
amount of the monthly subsidy paid to the operators under the June
2023 contracts - on multiple occasions and different bases - unilaterally
and without following the applicable provisions in the contracts.
33
The right to a complete record
[69] The decision in Helen Suzman Foundation v Judicial Service
Commission
7 is in this respect most profound:
“What forms part of the rule 53 record? The current position in our law
is that — with the exception of privileged information — the record
contains all information relevant to the impugned decision or
proceedings.
[16] Information is relevant if it throws light on the
decision-making process and the factors that were likely at play
in the mind of the decision- maker. [17] Zeffertt & Paizes make a
comment on the exclusion of evidence on the grounds of privilege. That
comment must surely be of relevance even to the exclusion of
privileged information from a rule 53 record. After all, the content of a
rule 53 record is but evidentiary in nature. The authors say that in the
case of privileged information, the exclusion is based on the recognition
that the general policy that justice is best served when all relevant
evidence is ventilated may, in some cases, be outweighed by a
particular policy that requires the suppression of that evidence.
[18] The
fact that documents contain information of a confidential nature 'does
not per se in our law confer on them any privilege against
disclosure'.
[19”
(my emphasis)
[70] The observations in paragraph 18 should also be borne in mind:
“[18] Specifically, coming to a decision- maker's deliberations,
historically they have not formed part of the rule 53 record. This was
based on this dictum in Johannesburg City Council:
'The words record of proceedings cannot be otherwise construed, in my
view, than as a loose description of the documents, evidence,
arguments and other information before the tribunal relating to the
matter under review, at the time of the making of the decision in
question. It may be a formal record and dossier of what has happened
before the tribunal, but it may also be a disjointed indication of the
before the tribunal, but it may also be a disjointed indication of the
material that was at the tribunal's disposal. In the latter case it would,
I venture to think, include every scrap of paper throwing light,
7 See 2018 (4) SA 1 (CC)
34
however indirectly, on what the proceedings were, both
procedurally and evidentially. A record of proceedings is analogous
to the record of proceedings in a court of law which quite clearly does
not include a record of the deliberations subsequent to the receiving of
the evidence and preceding the announcement of the court's
decision. Thus the deliberations of the Executive Committee are as little
part of the record of proceedings as the private deliberations of the jury
or of the Court in a case before it. It does, however, include all the
documents before the Executive Committee as well as all documents
which are by reference incorporated in the file before it.' ”
(my emphasis)
Coaches and Putco’s in my view rightly contend that the record plays a
crucial role in judicial review proceedings, providing key insights into
the decision- making process and ensuring fairness between the
parties. Courts rely on the record to assess the lawfulness and
rationality of decisions; without it, applicants are at a significant
disadvantage. The record sheds light on the reasoning behind
decisions, refuting after -the-fact justifications and allowing both the
applicant and the court to scrutinise the exercise of public power
thoroughly.
[71] In my view, despite the Department’s protestations, it has not provided
a record which reveals how it (this includes its agent the GMA) came to
the impugned decisions or how it thought same to be rational and after
all the delays it somehow acquired the right to renege on the service
contracts. There is no transparency on the rates and schedule agreed
with the operators or how it could have awarded same on an affordable
basis The ultimate shortfall raises more questions and only raises
35
suspicions including a notion that the Department assumed that it had
no duty to subsidise from its own budget (to top up the PTOG).
[72] The fact that no transparency, accountability, or any ultimate basis for
just and equitable relief cab be found in the existing record
demonstrates the woeful state of the Department’s rule 53 record. The
aforesaid failures may well result in an infringement of Coaches and
Putco’s rights under section 34 of the Constitution to have the matter
adjudicated fairly.
[73] Coaches’ heads of argument makes the point that in circumstances as
prevail in this matter a court may even view a self -review with some
scepticism and as a mechanism motivated by commercial
considerations to escape contractual obligations it no longer wishes to
honour rather than same being driven by genuine public interest
concerns.
8
[74] The aforesaid is even more so where unreasonable delay is at stake.
In this matter the record is unhelpful with regard to the delays.9
Condonation
8 Cf Altech Radio Holdings (Pty) Ltd and Others v Tshwane City
2021 (3) SA 25 (SCA) pp 69 -71
9 Cf Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331
(CC) (2019 (6)
36
[75] To the extent that any processes in this matter was filed out of time in
breach of any rule of court or in conflict with any Case Management
directive issued I believe it appropriate to condone the late filing thereof.
In doing so I bear in mind the requirements laid down in Grootboom v
National Prosecuting Authority and Another.
10
[76] Finally, the overall conduct of the Department in presenting the record
in a haphazard, piecemeal and tardy fashion deserves censure. I also
take into account the fact that it made use of electronic links in
placeholders. Although I have been making use of advanced computing
systems since the late 1980’s and at times the use of such links could
be useful I am of the view that the use of links to a database on such
extensive basis is unhelpful and unnecessary where a consolidated
paginated and indexed record of decision is required. I also take into
account that the applicants themselves were directed during case
management to provide a paginated and indexed record of such
documents including the rule 35(12) documents furnished and failed to
do so. T he costs order below reflects my disapproval of the
Departments conduct as a state organ which should conduct itself
beyond reproach.
Relief
[77] Hence, I grant the following order:
10 See par 50.
37
“1 To the extent that any processes in this matter were filed out of time
or in breach of any rule of court or in conflict with any Case
Management directive issued same is condoned;
2 The applicants are directed to lodge with the Registrar of the above
Honourable Court, the full and complete record of the decisions which
resulted in the impugned decisions referred to in paragraphs 2.1 and
2.2 of Part A of the Notice of Motion and paragraphs 1 and 2 of Part B
of the Notice of Motion.
3. The aforesaid is to include all the documents referred to in:
3.1 Paragraphs 3.2, 3.6, 3.8, and 3.9.of the Rule 30A notice filed by the
4
th respondent.on 7 March 2025.
3.2 Paragraphs 1.2, 2, 2.1, 2.2, 3, 3.1, 3.3, 3.4, 7, 8 and 10 of the Rule
30A notice filed by the First, Third and Sixth Respondents on 19 March
2025
4. All documents provided thus far as part of the rule 53 record coupled
with the documents referred to in paragraphs 3.1 and 3.2 above should
be bundled together as the rile 53 record, paginated and indexed
(where possible in a chronological fashion) with a clear indication
whether it was sourced from the records of the applicants or the GMA
as its agent.
38
5. The applicants are to pay the costs of the 1 st, 3rd, 4th, and 6th
respondents on an attorney and own client scale, such costs to include
the use of 2 counsel by the parties including the use of senio r counsel,
where applicable, by such party."
S VAN NIEUWENHUIZ AJ
ACTING JUDGE OF THE HIGH COURT
Date delivered: 23 January 2026
Representation for Applicants (in main review)
Counsel:
with
with
Adv Moses Mphaga S.C.
Tshwane Society of Advocates
Mobile: 082 054 5967/ 083 51 1 5020
(PA)
Email: mphaga@coun seltsa .co.za
mphaga@gmail.com
beaudine@counseltsa.co.za (PA)
Adv Yanela S. Ntloko
Group One Advocates
Mobile:082 044 8108
Email: ntloko@counsel.co.za
ntlokoys@gmail.com
Adv Boyisile Yawa
Circle Chambers
Mobile: 082 576 5487
Email: boyisileyawa@lawcircle .co.za
39
Instructed by: State Attorney, Pretoria
M Mtheto
012 309 1646/ 079 100 9469
MMtheto@justice.gov.za
Representation for 1
st,3rd and 6th Respondent (in main review)
Counsel: Adv A Franklin S.C.
Advocates Group 621
Mobile: 079 886 9520
Email: aefranklin@group621.co.za
with Adv S Scott
Advocates Group 621
Mobile: 083 784 9678
Email: scott@group621.co.za
Instructed by: Bowman Gilfillan
11 Alice Lane
Sandton
Johannesburg
Ref:624 8134
Tel: 011 669 9541/9612
Email:
samanthamason@bowmanslaw.com
robin.carr@bowmanslaw.com
cassidy.wood@bowmanslaw.com
bongumusa.sibiya@bowmanslaw.com
c/o Bowman Gilfillan Inc,
1 st Floor, Unit 1001A
Podium at Menlyn
43 Ingersol Road,
Lynnwood Glen,
Pretoria.
40
Representation for 4
th Respondent (in main review)
Counsel: Adv A Govender S.C.
Group One Advocates
Mobile:072 647 5920
Email:anbang@law.co.za
With Michael Dafel
Group One Advocates
Mobile:072 657 2229
Email: dafel@counsel.co.za
Instructed by: Cuzen Randeree Dyasi
Cotswold Building, First Floor,
Greenacres Office Park
Cnr Barry Hetzog and Victory Road,
Randburg
Ref:G35
Tel: 011 442 3242
Email: zain@crdinco.co.za
suhail@crdinco.co.za