IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: 804/2024
In the matter between:
BAGALE CONSULTING (PTY) LTD APPLICANT
AND
MEMBER OF THE EXECUTIVE COUNCIL
NORTH WEST DEPARTMENT OF HEALTH FIRST RESPONDENT
SUPERINTENDENT-GENERAL: NORTH
WEST DEPARTMENT OF HEALTH SECOND RESPONDENT
MIB INFRASTRUCTURE DEVELOPMENT
(PTY) LTD THIRD RESPONDENT
Coram: Petersen ADJP
Date heard: 14 August 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email. The date and time for hand- down of the
judgment is deemed to be 14h00 on 09 January 2026.
ORDER
1. The decision to appoint and the appointment of MIB Infrastructure Development (Pty)
Ltd (‘MIB’) by the former Administrator of the North West Department of Health through a
letter dated 16 March 2022 as consultants for architectural services for the planni ng, design
and commissioning of the upgrading of General De La Rey District Hospital under tender
NWDOH 31/2020 is declared unlawful, invalid and reviewed and set aside.
2. The conclusion of the service level agreement dated 1 September 2022 between the
North West Department of Health and MIB in respect of the latter’s appointment as consultants
for architectural services for the planning, design and commissioning of the upgrading of
General De La Rey District Hospital under tender NWDOH 31/2020 is declared unlawful,
invalid and reviewed and set aside.
3. It is declared that the appointment of the Applicant (‘ Bagale’) as project managers of
the Lichtenburg Hospital turnkey project under tender DPW 055/08, which was amended to a
traditional appointment by the North West Department of Health is valid, lawful and
enforceable.
4. The First and Second Respondents shall pay the costs of the Applicant on Scale C of
Rule 67A, which costs shall include the costs of counsel.’
JUDGMENT
Petersen ADJP
Introduction
[1] The applicant (‘Bagale’) seeks relief in the following terms:
‘1. That the decision to appoint and the appointment of MIB Infrastructure Development
(Pty) Ltd (‘MIB’) by the former Administrator of the North West Department of Health
through a letter dated 16 March 2022 as consultants for architectural services for the
planning, design and commissioning of the upgrading of General De La Rey District
Hospital under tender NWDOH 31/2020 be declared unlawful, invalid and reviewed and
set aside.
2. That the conclusion of the service level agreement dated 1 September 2022 between
the North West Department of Health and MIB in respect of the latter’s appointment as
consultants for architectural services for the planning, design and commissioning of the
upgrading of General De La Rey District Hospital under tender NWDOH 31/2020 be
declared unlawful, invalid and reviewed and set aside.
3. That it be declared that the appointment of Bagale as project managers of the
Lichtenburg Hospital turnkey project under tender DPW 055/08 by the North West
Department of Health is valid, lawful and enforceable.
[2] The application is opposed by the first respondent and the second
respondent, referred to as the Department for ease of reference . The third
respondent (‘MIB’), having been duly served has not entered opposition.
[3] The matter was set down for hearing on 14 August 2025. On even date an
application for postponement was moved from the bar by Adv Montsho-
Moloisane SC for the MEC and SG and opposed by Bagale. The application was
duly considered and refused with full reasons supplied in an ex tempore
judgment. The reasons for refusal of the postponement are not traversed in this
judgment, save to point out what was said by the SCA in South African Legal
Practice Council v Kgaphola and Another1 where the respondent similarly sought
a postponement from the bar without a substantive application:
‘Application for postponement
[3] At the hearing of the appeal, the respondent sought the postponement of the appeal, which
the LPC opposed. We dismissed that application with costs on an attorney and client scale and
undertook to furnish the reasons for that order in this judgment. Below are the reasons.
…
[4] The respondent failed to file his heads of argument in this Court. At the hearing of the
matter, counsel appeared on behalf of the respondent and applied for a postponement. The
application for postponement was made orally from the bar without a substantive application.
…
[6] It is necessary for an applicant for a postponement to give a full and satisfactory explanation of the
circumstances that necessitate a postponement.2 An application for postponement should be sought as
soon as a litigant realises the need for it. It is self -explanatory that the closer to the hearing the
application for postponement is made, the greater the risk of prejudice to the other litigants involved in
the matter and inconvenience to the court.
1 South African Legal Practice Council v Kgaphola and Another (795/2023) [2025] ZASCA 66; 2026
(1) SA 84 (SCA) (23 May 2025).
2 Imperial Logistics Advance (Pty) Ltd v Remnant Wealth Holdings (Pty) Ltd [2022] ZASCA 143; 2022 JDR 3071
(SCA) para 6, with reference to Myburgh Transport v Botha t/a S A Truck Bodies [1991] 4 All SA
574 (NmS); 1991 (3) SA 310 (NmS) at 576-578.
[7] As this Court emphasised in McCarthy Retail Ltd v Shortdistance Carriers CC:3
‘[A] party opposing an application to postpone an appeal has a procedural right that the appeal
should proceed on the appointed day…Accordingly…an applicant for a postponement … must
show a ‘‘good and strong reason’’ for the grant of such relief’.4
In Lekolwane and Another v Minister of Justice,
5 the Constitutional Court explained:
‘The postponement of a matter set down for hearing on a particular date cannot be claimed as
a right. An applicant for a postponement seeks an indulgence from the court. A postponement
will not be granted, unless this Court is satisfied that it is in the interests of justice to do so. In
this respect the applicant must ordinarily show that there is good cause for the postponement
…’
6’
…
[9] Even after all these events, there is no explanation why the respondent took no steps to
obtain the transcribed record between December 2023 and when this appeal was heard in
September 2024. Apart from the fact that the application for postponement la cked merit, the
respondent also showed flagrant disregard for the rules of this Court, as explained above. For
these reasons, we marked our displeasure by dismissing the application with a punitive costs
order on an attorney and client scale. As counsel fo r the respondent had no mandate to argue
the merits of the appeal, he was excused and the appeal proceeded unopposed.’
[4] Notwithstanding an intimation from this Court that Adv Montsho-
Moloisane SC could still address the Court on the merits of the application on the
papers (which includes opposing papers) without heads of argument from the
Department, considering the fact that on her own account she was fully
acquainted with the history of the matter, the invitation was declined.
3 McCarthy Retail Ltd v Shortdistance Carriers CC [2001] ZASCA 14; [2001] 3 All SA 236 (A); 2001 (3) SA
482 (SCA).
4 Ibid para 28.
482 (SCA).
4 Ibid para 28.
5 Lekolwane and Another v Minister of Justice [2006] ZACC 19; 2007 (3) BCLR 280 (CC).
6 Ibid para 17. See also National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others 1999 (3) SA 173 (C) at 181D; 1999 (3) BCLR 280 (C) at 287E; The National Police Service Union
and Others v The Minister of Safety and Security and Others [2000] ZACC 15; 2000 (4) SA 1110 (CC); 2001 (8)
BCLR 775 (CC) paras 4-5.
[5] The application proceeded with very brief submissions from Adv Chwaro
SC for Bagale with an indication that Bagale relied primarily on its submissions
advanced in its heads of argument.
Background
[6] The factual background of the matter extrapolated mainly from the
founding affidavit and considered against the answering affidavit is essentially as
follows. It is common cause that Bagale was appointed by the North West
Department of Public Works, as project managers for the planning, commission
and construction of the Lichtenburg Hospital, which has interchangeably been
referred to as the General De La Rey Hospital , on a turnkey basis, under the
capital projects of the Department on 23 December 2008.
[7] The initial appointment of Bagale on a turnkey basis, meant that Bagale as
the project manager was also entrusted with the appointment of the entire
professional team in the various built industry disciplines to execute the
appointment. The Department asserts that whilst the initial appointment of Bagale
was on a turnkey basis, this was changed when the project was transferred to the
Department. After the transfer of the capital projects to the Department, during or
about 2010, the then Superintendent-General of the Department, Dr LK Sebego,
after approving the internal submission to this effect, issued another letter to
Bagale essentially confirming Bagale’s appointment on the project.
[8] Bagale in its papers raises the fact that it was concerned about the change
of its mandate being changed from an appointment on a turnkey basis to a normal
or traditional appointment. It , however, proffers no further evidence of a
challenge to this decision, other than t he concern raised in this regard with the
Department. The Department, on this score, refer to the minutes of a meeting held
on 29 October 2012, sent to Bagale and responded to on 07 February 2013. The
Department contends that on a reading of paragraph 2 of Bagale’s letter, Bagale
acknowledged that the Department would be changing the nature of their
appointment from ‘turnkey’ to a normal or traditional appointment. In the letter
of 07 February 2013, Bagale records its discomfort in the manner which the
Department was changing the nature of its appointment but did nothing to
seriously challenge the decision.
[9] The fact that Bagale’s appointment was amended to a normal or traditional
appointment was raised again at a meeting held with the Department on 14 May
2013. Bagale, as it appears from the papers still did nothing to challenge this. The
Department accordingly contends that, Bagale as of 2013 were no longer
appointed on a turnkey basis and had no right to appoint any other person to the
project.
[10] The Department further contends that it is incorrect to refer to the General
De La Rey Hospital as the same institution as the Lichtenburg Hospital. It
maintains that the Lichtenburg Hospital which was intended to be built on the
land adjacent to the General De La Rey Hospital was earmarked for use as a
Nursing College. T he Department maintains that MIB was appointed for the
planning, design and commissioning for the upgrade of the existing General De
La Rey Hospital.
[11] As to the latter contention, the Department asserts reliance on the
‘Invitation of Closed Quotation for Architectural Services for the Planning,
Design and Commissioning (Turnkey) for the Upgrading of General De La Rey
Hospital’ which closed on 17 February 2022 at 11h00. For this reason, it contends
that, conceptually, the construction of a new hospital to wit Lichtenburg Hospital
is distinct from the upgrade project of the existing hospital, known as the General
De La Rey Hospital.
[12] A number of milestones were achieved between 2009 and 2015, including
the completion of drawings/renderings by architects, which were approved by the
Department on 10 April 2015. At each stage of the project between 2009 a nd
2015, Bagale submitted invoices to the Department which were duly honoured
and paid.
[13] As a result of the work done by Bagale, including consultations with
clients, finalising the project brief and presenting the completed designs of a 150-
bed hospital to the National Department of Health Peer Review Team, the designs
and drawings were approved. Bagale contends that it has since the approval of
the designs and drawings, been ready to go out on a public tender for the
appointment of a competent contractor to execute the project.
[14] Bagale maintains that there has been a period of non-activity on the project
since it provided the Department with the completed designs and bill of quantities
related to the project. When the new infrastructure Unit System Support
Regulations (‘IUSS Regulations’) c ame into effect in 2015, the National
Department of Health reviewed the completed designs and instructed Bagale to
incorporate the regulations into the designs. At this stage, it became clear that a
portion of land acquired by the Department, was insufficient to accommodate the
designs including the IUSS Regulations. Bagale consequently assisted the
Department to acquire a portion of land adjacent to the Lichtenburg Hospital,
which was consolidated with the existing site.
[15] A bone of contention exists whether this consolidated site constitutes the
full extent of the mandate of Bagale under which it was appointed to render
consulting services to the Department. The Department accepts that the site where
the new Lichtenburg Hospital was to be constructed, was adjacent to the existing
General De La Rey Hospital, and that same was consolidated into one property.
The Department, however, denies that Bagale was appointed for projects on the
consolidated site, which incorporates the General De La Rey Hospital.
[16] The Department challenges the assertion of Bagale that with the
consolidation of the two sites, Bagale was now responsible for the project on the
entire site. This it states is incorrect and premised on a misconstruction of the
2008 tender and the terms of Bagale’s appointment. It maintains that if there was
such a change that the Department would have had to confirm with Bagale that
its scope of work had been increased to include all the projects for the existing
General De La Rey Hospital, in which case the value of the project would have
been adjusted accordingly. The Department remains adamant that Bagale’s scope
of work was never increased to include the old General De La Rey Hospital.
[17] After Bagale submitted the revised designs incorporating the IUSS
Regulations to the Department in 2016, there was a hiatus of some seven years
until 2023, with Bagale asserting that it had made various attempts to ascertain
whether any progress had been made by the Department regarding the execution
of the project.
[18] The Department counters the latter assertion by Bagale. It contends that the
terms and conditions set out in the letter of appointment of Bagale entailed the
provision of ‘milestones’ to Bagale by the Department, to be executed in
furtherance of the project. Bagale would in turn execute the milestones, issue an
invoice for the work completed and afford the Department an opportunity to
verify such work done, with the Department subsequently making payment upon
approval of such work. The Department contends that it stands to reason, where
there were no ‘milestones’ provided, there could be no enforceable rights accruing
to Bagale, which extends to circumstances where budgetary constraints affected
the completion of the project. It therefore maintains that in terms of the agreement
between Bagale and the Department, in the absence of further milestones
provided, the agreement would ordinarily be deemed to be terminated or
concluded.
[19] On 23 January 2023, Bagale received communication from the Chief
Director: Infrastructure Development and Technical Services of the Department,
informing it that the Department had resolved to utilize the designs Bagale had
compiled for the Lichtenberg Hospital for another project, known as Madibogo
District Hospital. Resultantly, the Department invited Bagale to a meeting on 03
February 2023.
[20] At the meeting of 03 February 2023 Bagale, the Department confirmed that
it intended utilis ing the designs of Bagale at the Madibogo Project. Bagale
contends that it was not informed, whether before or during this meeting, that the
Department had cancelled the Lichtenburg H ospital project or that it had
appointed another entity.
[21] A second meeting was held on 23 March 2023 at Magaliesburg to discuss
the project and to determine the way forward. The MEC was present at this
meeting. No concrete resolutions or decisions were forthcoming from this
meeting.
[22] On 21 June 2023, Bagale received communication from the Department ,
under signature of Dr M Tlhogane, the SG at the time, that the Department had
decided to re-assign the Madibogo Project to Bagale. Bagale maintains that it was
taken by surprise by this turn of events since that project was some 100 kilometres
from the Lichtenburg project.
[23] On 03 August 2023 a meeting was held a t the Klerksdorp offices of the
Department to discuss Bagale’s concerns regarding the turn of events. Once
again, no concrete resolutions or decisions emanated from this meeting. The
discussions according to Bagale centred around its concerns regarding the
legalities of the appointment of another service provider at the Lichtenburg
Hospital site where it had been appointed , and the difference between the two
projects.
[24] On 10 August 2023, Bagale wrote to the Department to confirm the
discussions of 03 August 2023. Bagale further attached the project site layout and
consolidation diagram to demonstrate that the project site was inclusive of the
Lichtenburg Hospital. No response was forthcoming from the Department.
Instead, on 07 September 2023, a further meeting was held with the Department,
where it undertook to finalise the issue related to Bagale’s appointment, within
10 days, by either terminating their appointment or dealing with Bagale in
accordance with the law.
[25] On 20 September 2023, Bagale wrote to the Department confirming the
discussions of 07 September 2023, with a reminder to the Department to cancel
its appointment as it had indicated. On 28 September 2023, Bagale received a
letter from the MEC, informing it that the Department intends terminating
Bagale’s appointment in respect of the Lichtenburg Hospital in terms of the
contract. In that letter, the Department also retracted its intimation that Bagale
would be re-assigned to the Madibogo project.
[26] The Department accepts that it cannot legitimately be disputed that Bagale
would prefer its appointment to be terminated by the Department so as to invoke
the termination fees in respect of the project. They accept that whilst it is true that
the Department acted in a manner where they purported to terminate the
agreement, the Department was later advised that it was not necessary to do so,
nor was it a legal requirement. This legal advice was premised on the common
cause fact that the last milestones were provided in 2015, and that this meant the
project ended as soon as there were no milestones provided.
[27] On 03 October 2023, Bagale responded to the letter of 28 September 2023.
Bagale asserted in this letter that it maintained that it was still in possession of the
project site, had hoped that the Department had not appointed another service
provider for the same project at the same site, that the instruction to stop any work
did not amount to termination of the contract and that it awaited the termination
letter with clearly set out costs. This letter was followed up with a letter on 0 6
October 2023, with a request that the matter be finalised within seven days.
[28] On 15 November 2023, Bagale directed a further letter to the Department
seeking an assurance that the acting Superintendent-General was briefed on the
matter and requesting a meeting with her to discuss the project. No response was
received from the Department on any of the aforesaid correspondence.
[29] The directors of Bagale, concerned by the silence of the Department, on 19
December 2023, directed a request for information to the Department, to inform
it if any service provider had been appointed at the Lichtenburg Hospital site. On
01 February 2024, the Department, through its Director: Legal Services
responded to Bagale’s request for information. It is a t this point, that Bagale
became aware of the facts surrounding the appointment of MIB; and received
legal advice that it had to institute a PAJA application within 180 days of gaining
knowledge of the appointment of MIB.
[30] On the application for the review of the appointment of MIB, the
Department states that the case of Bagale is essentially that the delisting of the
project was deliberate conduct intended to render its appointment moribund and
then appoint MIB on a project that had already been executed and implemented
up to stage 4. That Bagale in the circumstances contends that the delisting of the
construction project was motivated by malice and was arbitrarily made.
[31] The Department contends, on the review issue, that on the grounds relied
on by Bagale, there is nothing wrong with appointing various consultants on the
same site, provided that the scope of the works to be conducted is not the same.
[32] Against the backdrop of the aforesaid exposition, Bagale launched the
present application on 16 February 2024.
The declaratory order sought in prayer 3 and the point in limine raised by
the Department
[33] Bagale seeks a declaratory order maintain ing that it seeks to protect what
is its’ right as the duly appointed consultant in respect of the construction site
known as Lichtenburg Hospital, which includes the existing General De La Rey
Hospital (‘the consolidated site’) situated in the tow n of Lichtenburg , under
tender number DPW055/08 . The Department, however, maintains that Bagale
was initially appointed on a turnkey basis under tender DPW055/08, to facilitate
the construction of the new Lichtenburg Hospital on a new site. The appointment
of MIB, according to the Department, which was under tender NWDOH31/2020,
was solely for the upgrading of the existing General De La Rey Hospital. To this
end, they refer to the tender documents and the SLA concluded between the
Department and MIB.
[34] The Department points out that conceptually, the construction of a new
hospital is quite different from the upgrading of an existing hospital; and that the
two projects differ materially . Bagale on its assessment of the case for the
Department, surmise that the case for the Department is essentially that it is
impermissible for Bagale to seek a declaratory order which is abstract, academic
and moot since there is no dispute upon which this Court must determine the
rights of Bagale. This, on the version of the Department implicates prayer 3 of
the Notice of Motion.
[35] Bagale disagrees with this stance taken by the Department. Bagale
contends that the declaratory order is sought against what the Department seeks
to suggest are different construction sites in respect of the appointment of Bagale
and MIB. Bagale contends that it is on this very point of disagreement that this
Court is requested to provide a declarator.
[36] Bagale submits that the appointment of MIB to do consulting work in
respect of what the Department refers to as the upgrading project of General De
La Rey Hospital under a different contract number is an encroachment on the
construction site that was initially allocated to Bagale under circumstances where
Bagale’s appointment has not been terminated by the Department. Bagale further
submits that the Department is seeking to rely on form over substance by asserting
that Bagale was appointed under a different contract number; and to design
drawings for a new hospital adjacent to the Lichtenburg Hospital, whereas MIB
was appointed under a different contract number for the upgrading of the latter
hospital. The Department contends to the extent that Bagale maintains that MIB
was appointed to a site in respect of which they were already appointed, this is
without merit and legally unsustainable.
[37] Bagale contends that MIB ha s been appointed to work on the same
construction site it is appointed to, with a view to enhance or increase the bed
capacity of the existing hospital to accommodate more patients following the
closure of the nearby Thusong Hospital. That being the case, neither Bagale nor
MIB can execute their respective mandates with either of them being on site.
[38] The Department submits that it is trite that a court cannot grant a
declaratory order where the legal position has already been clearly laid down by
statute or is unambiguous. Also, that a court cannot grant orders that are abstract
or academic.
[39] Bagale against the factual background of the matter sketched by it, submits
that the existing, future or contingent right of Bagale to execute its mandate as
appointed by the Department is being placed at risk by the appointment of MIB
to do work on the very same site that has been allocated to Bagale. On this basis
Bagale contends, that a declarator should be given confirming its existing right
over the construction site, which constitutes the consolidated portions of land
upon which the only public hospital in Lichtenburg is situated.
[40] As indicated above, the Department concedes that it is not in dispute that
Bagale was appointed as project manager for the new Lichtenburg Hospital, under
tender DPW055/08 by the North West Department of Public Works and Roads,
and that the project was later transferred to the Department. On Bagale ’s
contention that the Department has appointed MIB to the same site it was
assigned under tender DPW055/08, they contend, on legal advice, that Bagale is
in law, only entitled to seek relief in instances where its rights, conferred in terms
of tender DPW055/08, are violated. They contend that tender NWDOH31/2020
and the subsequent SLA entered into by the Department and MIB, does not
encroach on the rights that accrued to Bagale under tender DPW055/08, which
was limited to the envisaged new Lichtenburg Hospital project.
[41] The Department begs the question why this Court should issue a
declaratory order in respect of the validity of the same agreement that Bagale is
enforcing. It contends that Bagale is doing so, as it is aware that the agreement
has come to fruition and simply wants to squeeze the Department for more funds,
and unduly so, in addition to the R93 000 000.00 (ninety three million rand) it
had already received in respect of the appointment of service providers, based on
the milestones set by the Department for the new Lichtenburg Hospital, on a site
adjacent to the old General De La Rey Hospital.
[42] The Department submits that there would be no benefit to Bagale in real
terms if a declarator is granted in its favour. Further, that even if a declarator was
granted, it would not settle the issues between the parties as the scope of the work
to be completed in the construction of a new Lichtenburg Hospital is different
from the upgrading of the General De La Rey Hospital, which culminated in the
appointment of MIB.
[43] The Department concludes that a declaration must relate to a right and not
a fact; and what Bagale seeks from this Court is the declaration of a fact, that
Bagale was appointed a project manager for the construction of the new
Lichtenburg Hospital under tender DPW055/08.
[44] Bagale relies on s 21(1)(c) of the Superior Courts Act 10 of 2013, to assert
its right to a declaratory order. Section 21(1)(c) provides:
‘21 Persons over which and matters in relation to which Divisions have jurisdiction
(1) A Division has jurisdiction over all persons resident or being in, and in
relation to all causes arising and all offences triable within, its area of jurisdiction and all other
matters of which it may according to law take cognisance, and has the power –
(a) …
(b) …
(c) in its discretion, and at the instance of any interested person, to enquire into and determine
any existing, future or contingent right or obligation, notwithstanding that such person cannot
claim any relief consequential upon the determination.’ (emphasis added)
[45] Bagale cites Cordiant Trading CC v Daimler Chrysler Financial Services
(Pty) Ltd7 where the SCA, in interpreting the previously worded provision similar
to section 21(1)(c) stated that:
‘Although the existence of a dispute between the parties is not a prerequisite for the exercise
of the power conferred upon the High Court by the subsection, at least there must be interested
parties on whom the declaratory order would be binding. The appli cant in a case such as the
present must satisfy the court that he/she is a person interested in an ‘existing, future or
contingent right or obligation’ and nothing more is required. ( Shoba v Officer Commanding,
Temporary Police Camp, Wagendrif Dam 1995 (4) SA 1 (A) at 14F). In Durban City Council
v Association of Building Societies 1942 AD 27 Watermeyer JA with reference to a section
worded in identical terms said at 32:
‘The question whether or not an order should be made under this section has to be examined in
two stages. First the Court must be satisfied that the applicant is a person interested in an
“existing, future or contingent right or obligation”, and then, if satisfied on that point, the Court
must decide whether the case is a proper one for the exercise of the discretion conferred on it.’’
[46] It is important in my view to add what Jafta JA (as he then was) said further
in Cordiant at paras 17 and 18, in clarification of para 16:
‘[17] It seems to me that once the applicant has satisfied the court that he/she is interested in
an ‘existing, future or contingent right or obligation’, the court is obliged by the subsection to
exercise its discretion. This does not, however, mean that the court is bound to grant a declarator
but that it must consider and decide whether it should refuse or grant the order, following an
examination of all relevant factors. In my view, the statement in the above dictum, to the effect
7 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) para
16.
that once satisfied that the applicant is an interested person, ‘the Court must decide whether the
case is a proper one for the exercise of the discretion’ should be read in its proper context.
Watermeyer JA could not have meant that in spite of the applicant establishing, to the
satisfaction of the court, the prerequisite factors for the exercise of the discretion the court
could still be required to determine whether it was competent to exercise it. What the learned
Judge meant is further clarified by the opening words in the dictum which indicate clearly that
the enquiry was directed at determining whether to grant a declaratory order or not, something
which would constitute the exercise of a discretion as envisaged in the subsection (cf Reinecke
v Incorporated General Insurances Ltd 1974 (2) SA 84 (A) at 93A-E).
[18] Put differently, the two -stage approach under the subsection consists of the following.
During the first leg of the enquiry the court must be satisfied that the applicant has an interest
in an ‘existing, future or contingent right or obligation’. At this stage the focus is only upon
establishing that the necessary conditions precedent for the exercise of the court’s discretion
exist. If the court is satisfied that the existence of such conditions has been proved, it has to
exercise the discretion by deciding either to refuse or grant the order sought. The consideration
of whether or not to grant the order constitutes the second leg of the enquiry.’ (emphasis
added)
[47] Bagale places much store on the dictum in Chairman of the Board of the
Sanlam Pensioenfonds (Kantoorpersoneel) v Registrar of Pension Funds 2007
(3) SA 41 (T) that an existing and live dispute cannot be a prerequisite for a court
to invoke its discretion in deciding whether to grant a declaratory order or not.
[48] Bagale submits that it and the public have an interest in the declaration of
invalidity of the impugned contract, on a contention that it was concluded in
invalidity of the impugned contract, on a contention that it was concluded in
contravention of a constitutional imperative as contained in section 217 of the
Constitution of the Republic of South Africa, 1996.
[49] Bagale further asserts that the Department is not suggesting that it has
terminated Bagale’s appointment in respect of the project for the Lichtenburg
Hospital and to that extent, this Court must declare the right of Bagale vis a vis
the Department on the one hand and MIB on the other, in respect of the
construction site.
[50] On the case law relied on, Bagale contends that the law is settled in that it
is not a requirement that must definitely be a dispute between the parties but rather
that there should be a party against whom the declaratory order, if granted, will
be binding. It relies in this regard on Langa v Hlophe and Ex parte Nell.
[51] Bagale lastly contends on this issue that the relief it seeks must be
considered against the dictum of the Constitutional Court in Rail Commuters
Action Group v Transnet Ltd t /a Metrorail
8 it stated as follows regarding a
declaratory order:
‘It is quite clear that before it makes a declaratory order a court must consider all the relevant
circumstances. A declaratory order is a flexible remedy which can assist in clarifying legal and
constitutional obligations in a manner which promotes the protection and enforcement of our
Constitution and its values. Declaratory orders, of course, may be accompanied by other forms
of relief, such as mandatory or prohibitory orders, but they may also stand on their own. In
considering whether it is desirable to order mandatory or prohibitory relief in addition to the
declarator, a court will consider all the relevant circumstances.’
The review of the appointment of MIB and the conclusion of the Service
Level Agreement between the Department of Health and MIB
[52] Bagale asserts that the appointment of MIB is reviewable in terms of ss
6(2)(c), 6(2)(e)(iii), 6(2)(b), 6(2)(i) of PAJA and is i rrational, unreas onable,
unlawful and ought to reviewed and set aside in terms of the principle of legality.
8 Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) para 107.
[53] Bagale contends that the decision taken by the then Administrator of the
Department to appoint MIB through a letter dated 16 March 2022 is reviewable
and must be set aside because it was procedurally unfair, was otherwise
unconstitutional or unlawful, a mandatory procedural re quirement was not
complied with and was taken because irrelevant considerations were taken into
account and relevant considerations were not considered.
[54] According to Bagale, the decision to appoint MIB was made without
involving and/or consulting and/or informing Bagale about the appointment
related to the same construction site (Lichtenburg Hospital/ General De La Rey
Hospital) which site is the subject of the appointment of Bagale. Bagale maintains
that principles of good governance and logic dictate that an organ of state like the
North West Department of Health, should have been alive to the existing
appointment of Bagale on the same site and thus caused Bagale to be terminated
prior to appointing MIB.
[55] The officials of the North West Department of Health never informed
Bagale about the appointment of MIB and the former only became aware of the
appointment following a request for access to information. Had relevant
considerations being considered, the North West Department of Health would
have firstly engaged with Bagale about the apparent change of scope (from
construction of a new hospital to upgrading) prior to appointing MIB despite
Bagale having offered to do a redesign of the scope, if there was a need to do so.
[56] Bagale therefore concludes that the decision to appoint MIB is susceptible
to be reviewed and set aside as prayed for. The basis for assailing the decision to
appoint MIB on the principle of legality is anchored on the decision of the
Constitutional Court in Affordable Medicines Trust and Others v Minister of
Health and Another9 where the court stated as follows:
‘The exercise of public power must therefor e comply with the Constitution, which is the
supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality,
which is an incident of the rule of law, is one of the constitutional controls through which the
exercise of public power is regulated by the Constitution'.
[57] Bagale contend that MIB did not comply with the requirements of tender
issued by the Department since bid specifications and requirements set out in an
invitation to tender, together with the applicable constitutional and legislative
provisions that deal with procurement, constitute the legally binding framework
within which public tenders must be submitted, evaluated and awarded.
[58] Bagale latches on to the fact that one of the requirements for appointment
of MIB was that as a service provider it was required to submit a certificate of
professional registration for the person responsible for the project. The bid closing
date was 17 February 2022 at 11h00. At the time of submission of the bid
documents, MIB submitted a certificate of one Tafadzwa Mtisi, as evidence of
professional registration of the person who was going to be responsible for the
project. Bagale maintains that upon perusal of the purported ‘certificate of
registration’, it became evident that the said certificate of registration was only
valid until 1 January 2022 which means that at the time of submission of the bid
documents of MIB , there was no valid professional registration certificate that
was submitted on behalf of MIB. This says Bagale should have disqualified MIB
from being appointed.
9 Affordable Medicines Trust and Others v Minister of Health and Another 2006 (3) SA 247 (CC) para
49.
[59] None of the directors of MIB were registered persons in terms of the Code
of Conduct published in terms of section 27 read with section 36 of the
Architectural Profession Act 44 of 2000 and thus could not by law, portray MIB
as a firm of architects. The end result, there was material non- compliance with
the requirements of the Department's own tender requirements regarding the
professional registration of the person responsible of the project as well as non-
compliance with the statutory provisions regulating the architectural profession.
[60] In the circumstances says Bagale the appointment of MIB and the
conclusion of the service level agreement was done contrary to the law and the
provisions of section 217 of the Constitution read with section 38(1)(a)(ii) of the
PFMA, and it therefore falls to be reviewed in accordance with the grounds of
PAJA relied on and the principle of legality , within the parameters set out in
Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty)
Limited and Others v Road Traffic Management Corporation and Others
10 (CCT
182/17; CCT 240/17) [2018] ZACC 21; 2018 (9) BCLR 1067 (CC) (17 July
2018).
[61] The Department with reference to the deponent to Bagale’s affidavit
asserting that MIB was appointed in circumstances where they did not satisfy the
requirement that the bidder’s directors must be registered with the South African
Council for the Architectural Profession, contend that the registration requirement
relied on by the deponent, does not contemplate that a director should be
registered with the South African Council for the Architectural Profession. They
further contend that the entity is required to disclose the name of the person who
is responsible for the project and such a person must be registered with the South
African Council for the Architectural Profession; and consequently, any person
10 Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others v Road
Traffic Management Corporation and Others (CCT 182/17; CCT 240/17) [2018] ZACC 21; 2018 (9)
BCLR 1067 (CC) (17 July 2018).
employed by MIB can be disclosed as a person responsible for the project. The
Department ultimately contends that the contention that a director of MIB must
be registered with the South African Council for the Architectural Profession is
premised on an incorrect understanding of the terms of the bid.
[62] Bagale’s challenge relating to the inclusion of the project in the Table B5
list of projects, contends the MEC and SG is non-meritorious as it remains the
prerogative of the D epartment which projects should be included in Table B5.
The creation of the Table B5 list they continue is nothing but an administrative
tool to set out the projects which have to be prioritized for a particular financial
year. The listing of the project does not mean that such a project would be
implemented for that particular financ ial year, and neither does the inclusion of
such a project in the aforesaid list create any form of rights to Bagale.
[63] What it means is that the inclusion of the project in the list purely depends
on the priorities of the Department and/or whether the project is funded for a
particular financial year. The budget allocated by the Provincial Treasury plays a
major role in construction projects. In casu, the construction project was removed
because the D epartment was experiencing budgetary constraints and it was not
practically possible to construct the new Lichtenburg Hospital.
[64] The criticism levelled against the Department by Bagale that the exclusion
of its project on the table list was a stratagem to ensure that the project is not
funded, they posit is far reaching, considering that no evidence was proffered to
support such an assertion.
Discussion
The appointment and conclusion of the SLA with MIB
[65] This application presents a complex intersection of administrative law,
constitutional procurement principles and the intricacies of large -scale
infrastructure project management within the purview of tenders in the South
African public sector. The dispute which is centr ed on the construction and
upgrading of the Lichtenburg Hospital (also identified as the General De La Rey
District Hospital), involves a multi-decade timeline beginning in 2008. The
complexity of the matter provides no easy solutions and requires reliance by this
Court, as best as it can on precedent.
[66] The genesis of the dispute as adumbrated above, lies in the appointment
of Bagale on 23 December 2008 by the North West Department of Public Works.
Originally, Bagale was appointed as project managers for the planning,
commission, and construction of the Lichtenburg Hospital on a ‘turnkey’ basis. A
turnkey contract typically implies a project delivery method where the contractor
or consultant assumes full responsibility for design, procurement, construction,
and commissioning, delivering a facility ready for immediate operation, literally
‘turning the key’.
11
[67] It is inescapable that a significant factual and legal pivot occurred during
the transfer of capital projects from the Department of Public Works to the
Department of Health around 2010 , and the subsequent change of Bagale’s
appointment on a turnkey basis to a normal or traditional appointment
. Bagale
remains adamant in its resolve that its’ initial appointment on a turnkey basis by
11 The basics of a turnkey contract - Master Builders KwaZulu -Natal,
https://www.masterbuilders.co.za/news/697976/The-basics-of-a-turnkey-contract.htm
the Department of Public Works and later by the Department under signature of
Dr. LK Sebego, remains unchanged. The meetings and correspondence
exchanged between the parties during 2012 and 2013 is critical to the resolution
of this issue.
[68] Critically, the minutes of the meeting of 29 October 2012, clearly indicate
the Department’s intention to change the appointment from turnkey to a ‘normal’
or traditional appointment. In its letter of 07 February 2013, Bagale
acknowledged the Department’s intent to change the nature of the appointment,
recording its ‘discomfort’ with that change, but failed to take formal legal steps
to challenge this variation. Tellingly, the meeting of 14 May 2013 reiterated that
the appointment was no longer on a turnkey basis.
[69] In a traditional appointment, design responsibility is often separate from
construction, and the client (the Department) retains greater control over the
appointment of the professional team.
12 By Bagale’s apparent acquiescence to
this change in 2013, its claim to an exclusive, all-encompassing turnkey mandate
is arguably weakened.
13
[70] It is common cause that Bagale achieved several project milestones,
including the completion of drawings for a 150 -bed hospital, which were
approved in April 2015. Bagale assisted in the consolidation of land to
accommodate the new designs, but a hiatus of seven years followed until 2023.
However, after the introduction of the Infrastructure Unit System Support (IUSS)
Regulations in 2015, the project entered a period of stagnation.
12 The Consulting Engineer in Turnkey Project – FIDIC. https://fidic.org/node/758.
13 Heyneke v Umhlatuze Municipality (D908/09) [2010] ZALCD 8 (24 March 2010).
[71] The high watermark of the defence of the Department on the declaratory
relief sought is that the agreement with Bagale was functionally ‘terminated or
concluded’ in the absence of new milestones. The logic of the Department in this
regard, is essentially predicated on three arguable points. First, that the agreement
with Bagale was dependent on milestones, and since no milestones were provided
by the Department from 2015, no enforceable rights accrued to Bagale. Second,
that since Infrastructure projects are tied to the Provincial Treasury’s budget and
the ‘Table B5’ priority list, the de-listing of the project due to funding shortages
effectively paused or ended any contractual obligations with Bagale. Third, the
effluxion of time, with a hiatus of nearly a decade since the last milestone in 2015,
implies that the contract had reached its natural fruition or had been abandoned.
[72] Bagale however maintains that it had not abandoned the project and
remained ‘in possession’ of the site. In adumbrating this assertion, Bagale points
to a series of meetings in 2023, including one with the MEC in Magaliesburg and
another in Klerksdorp, where the Department discussed re-assigning Bagale to
the ‘Madibogo Project’ or using Bagale’s designs elsewhere. These interactions
according to Bagale confirms that the Department still viewed Bagale as a validly
appointed service provider, as the Department even wrote a letter on 28
September 2023 ‘intending to terminate’ the appointment.
[73] It is trite that under our law of contract, an intention to terminate implies
that a valid contract is still in existence. If a party purports to terminate a contract
without a valid legal basis or without following the prescribed procedure, it may
be guilty of ‘wrongful termination’ or repudiation.
[74] In determining whether or not Bagale is entitled to the declarator it seeks,
the two-stage test for declaratory orders set out in Cordiant Trading above is
the two-stage test for declaratory orders set out in Cordiant Trading above is
determinative of the issue. In the first leg of the enquiry, Bagale must establish
that it is an ‘interested person’. To this end, Bagale must prove an ‘existing, future
or contingent right’. Bagale asserts an existing right predicated on its appointment
for the Lichtenburg Hospital project. The Department argues that the two projects
awarded to Bagale and MIB respectively are distinct projects. That may be the
case, but the argument overlooks the fact that the project awarded to Bagale, aside
from the project awarded to MIB, remains extant since it has not been cancelled
by the Department. It does not avail the Department to simply state that on legal
advice, contrary to its prior positive conduct which acknowledged that the
contract with Bagale remained extant, that the provision of no further milestones
implied that the contract was terminated or ended.
[75] Bagale’s interest is clearly an ‘existing, future or contingent right’ to the
fees and work associated with its 2008 appointment. I am accordingly satisfied
that Bagale has made a case on the first leg of the enquiry. What remains is to
determine whether or not the case made out by Bagale is a proper one for the
exercise of the discretion envisaged in the second leg, to avoid an abstract or
academic order.
[76] The point in limine raised by the Department is essentially that what Bagale
seeks is a declaration of a ‘fact’ rather than a ‘right’. Since Bagale’s ‘right’ to
work on the project is inextricably linked to the Department’s provision of
milestones and funding; and because the project was de-listed from Table B5 and
the nature of the appointment shifted in 2013, th is Court by implication must
consider whether a declarator would have any practical effect.
[77] On the divergent submissions of Bagale and the Department, it is clear that
the agreement between the parties was not cancelled by mutual agreement, no
reasonable notice was furnished to Bagale. It is trite that termination for
convenience or budgetary reasons usually requires the settlement of outstanding
fees and costs. It is common cause from the meetings and correspondence that
the Department only provided an ‘intention’ to terminate, not a final termination
letter with costs.
[78] The Department further has not explained its initial intention to engage
Bagale on the transfer of the Lichtenburg project to Modibogo, which by
implication is an admission that the Lichtenburg contract remained extant. The
Department’s argument that the contract ‘automatically ended’ due to a lack of
milestones is legally tenuous. While an offer may lapse after a reasonable time, a
concluded contract (especially one that has reached Stage 4 of design) remains
binding until it is formally terminated by effl uxion of time, completion of the
project, or a specific termination act. Since the ‘Lichtenburg Hospital’ project was
never completed and the Department continued to engage with Bagale about the
site as late as 2023, the contract cannot be said to have terminated by conduct.
[79] That this Court’s discretion to grant a declarator under s 21(1)(c) of the
Superior Courts Act is broad is made plain in Rail Commuters Action Group v
Transnet Ltd. As the Constitutional Court emphasized, a declaratory order is a
‘flexible remedy’ that clarifies legal obligations. In this case, a declarator is
necessitated to resolve the uncertainty created by the Department’s contradictory
actions, by claiming on one hand that the contract ended in 2015, and on the other,
negotiating Bagale’s assignment to the Madibogo project in 2023, with a later
decision to withdraw such assignment.
[80] The only rider to granting the relief sought, within the ambit of further and
or alternative relief is that the nature of Bagale’s ‘right’ in fact changed in 2013
through a variation from ‘turnkey’ to ‘normal’ or traditional. I n circumstances
where Bagale never challenged this, Bagale cannot now seek a declarator for a
turnkey project.
[81] Bagale’s appointment under tender DPW 055/08 remains valid, but its
nature was varied by acquiescence in 2013 from a ‘turnkey’ basis to a ‘normal’
professional services appointment. The Department’s argument that the contract
automatically ended in 2015 is rejecte d; a contract of this magnitude requires a
formal termination process, which the Department itself acknowledged by issuing
a notice of ‘intention to terminate’ in September 2023. The declarator should,
therefore, be limited to the validity of the appointment, as varied in 2013.
The review of the appointment of MIB and the conclusion of the Service
Level Agreement between the Department of Health and MIB
[82] The Department maintains that the ‘Lichtenburg Hospital’ (Bagale’s
project) and ‘General De La Rey Hospital’ (MIB’s project) are conceptually
distinct, with the one being a new construction and the other an upgrade. Bagale
counters that the consolidation of the land sites in 2016 merged these into one
‘consolidated site’ and appointing MIB to work on the same site while Bagale's
appointment was active constitutes an unlawful encroachment.
[83] A comparison of the ‘two projects’ evinces the following. The Bagale
project of 2008, included the planning, design, and construction of the new
Lichtenburg Hospital, under tender DPW055/08. Its ’ key status was the
provisioning of a 150-bed facility. No SLA was concluded. The MIB project of
2022 provided for architectural services for upgrading the existing General De La
Rey Hospital, under tender NWDOH 31/2020, with an SLA concluded on 01
September 2022
.
[84] From a procurement perspective, if the Department intended to ‘upgrade’
the existing hospital rather than build a new one, this constitutes a change in
scope. Bagale argues that, as the existing consultant, it should have been
consulted or its contract terminated before another entity was appointed to the
same geographic location. The appointment of MIB through a closed quotation
process for a project on a site where another consultant (Bagale) already had a
mandate for a major hospital development raises serious questions about
transparency. The Department’s decision to move the Madibogo Project to Bagale
and then retract it, followed by the silent appointment of MIB, suggests a lack of
transparency. A fair process would have required the Department to formally
settle the existing contractual relationship with Bagale before initiating a new
procurement process for the same site.
[85] The main bone of contention under this rubric, however, is Bagale’s
challenge under PAJA and the principle of legality, related to MIB’s professional
registration. This essentially entails that ‘non-responsiveness’ on the part of MIB
related to the expired certificate of its architect, impacts the lawfulness of the
tender.
[86] In Eskom Holdings SOC Limited v Babcock Ntuthuko Engineering 14
(137/2023, 156/2023 and 148/2023) [2024] ZASCA 63 (29 April 2024), the SCA
dealt with non-compliance with peremptory tender requirements as follows:
‘[41] In considering the contentions advanced on behalf of Babcock it will be instructive at this
stage to reflect on the approach adopted by this Court regarding the condonation of non-
compliance with peremptory tender requirements. In Millennium Waste Management (Pty)
Ltd. v Chairperson of the Tender Board: Limpopo Province and Others 15 , the applicant’s bid
14 Eskom Holdings SOC Limited v Babcock Ntuthuko Engineering (137/2023, 156/2023 and 148/2023)
[2024] ZASCA 63 (29 April 2024).
15 Millennium Waste Management (Pty) Ltd. v Chairperson of the Tender Board: Limpopo Province
and Others (31/2007) [2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All SA 145; 2008 (2) SA
and Others (31/2007) [2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All SA 145; 2008 (2) SA
481; 2008 (5) BCLR 508; 2008 (2) SA 481 (SCA).
was disqualified because it had failed to sign a compulsory declaration of interest form. Having
found that the applicable regulation empowered the tender board to accept tenders even if they
fail to comply with tender requirements, this Court held that co ndonation of the applicant’s
failure to sign ‘would have served the public interest as it would have facilitated competition
among the tenderers.’ The Court found further that by condoning the failure ‘the tender
committee would have promoted the values of fairness, competitiveness and cost-effectiveness
which are listed in s 217 of the Constitution’ because the applicant’s price was significantly
cheaper than that of the successful tenderer. A factor that also appears to have weighed heavily
with the court was the fact that the applicant had duly completed the declaration form and had
initialled both pages but had ‘innocently’ omitted to sign the document. The non- compliance
was therefore not material, and having regard to the purpose of the document, the Court found
that the tender committee acted unreasonably in disqualifying the applicant.
…
[43] Similarly, in Overstrand Municipality v Water and Sanitation Services South Africa (Pty)
Ltd
16 (Overstrand Municipality) this Court, in considering the issue of substantial compliance
with a mandatory tender requirement, cautioned that:
‘One should also guard against invalidating a tender that contains minor deviations that do not
materially alter or depart from the characteristics, terms, conditions and other requirements set
out in tender documents. In the present case the non-complianc e is not of a trivial or minor
nature. The tender by Veolia was not an ‘acceptable’ one in terms of the Procurement Act, in
that it did not ‘in all respects’ comply with the specifications and conditions set out in the RFP.
Thus, the challenge in terms of s 6(2)(b) of PAJA, namely that a “mandatory and material
procedure or condition prescribed by an empowering provision, was not complied with”.
procedure or condition prescribed by an empowering provision, was not complied with”.
[44] The materiality of Babcock’s non-compliance with the compulsory tender requirements
thus ‘depends on the extent to which the purpose of the requirements is attained.’9 It is
necessary, however, to stress that this dictum should not be construed as in any manner
detracting from the fundamental importance of holding bidders to peremptory and material
tender conditions in order to achieve the constitutionally enjoined ideal of fair, equitable,
transparent, competitive and cost -effective public procurement. On the contrary, the
Constitutional Court cautioned that ‘deviations from fair process may themselves all too often
16 Overstrand Municipality v Water and Sanitation Services South Africa (Pty) Ltd [2018] ZASCA 50;
[2018] 2 All SA 644 (SCA).
be symptoms of corruption or malfeasance in the process’ and said that the purpose of
insistence on compliance with prescribed formalities is threefold, namely: ‘(a) it ensures
fairness to participants in the bid process; enhances the likelihood efficiency and optimality in
the outcome; and serves as a guardian against a process skewed by corrupt influences.’”
[87] A critical requirement of tender NWDOH 31/2020 was the submission of
a certificate of professional registration for the person responsible for the project.
The bid closing date was 17 February 2022 . MIB submitted an architect’s
certificate for one Tafadzwa Mtisi . It is common cause that the registration
certificate for Mtisi was only valid until 01 January 2022. Under s 18(2) of the
Architectural Profession Act 44 of 2000, a person may not practice in any of the
registration categories unless registered wit h SACAP. I t is therefore illegal to
provide architectural services of any nature without being registered with
SACAP. Since Mtisi was put forward as the person responsible for the project,
and he was not validly registered at the time of the bid closing, the bid was
technically non-responsive.
[88] The Department’s contention that ‘any person employed by MIB can be
disclosed as a person responsible’ ignores the underlying requirement that the
firm itself must be legally constituted to provide such services. A firm cannot
lawfully tender for architectural services if it cannot provide proof of a valid and
current professional registration for its project lead at the moment of the bid close.
[89] Babcock, with reference to the well-known authorities cited therein makes
it clear that if a ‘mandatory returnable’ is not submitted by the deadline, or is
invalid, the tenderer must be disqualified. Babcock further clarified that ‘actual
compliance’ with material requirements is necessary, and organs of state do not
have the discretion to condone non -compliance with terms that are material and
have the discretion to condone non -compliance with terms that are material and
integral to the services tendered. The professional registration of an architect is
undoubtedly a material requirement, as it goes to the legal capacity of the bidder
to perform the work.
[90] The evidence of MIB’s non-responsiveness is compelling . It was a
mandatory requirement that the tender specifically required a professional
registration certificate for the project lead, compliance with the tender
requirements must be assessed at the time of the close of tenders, 17 February
2022. In the circumstances, the decision to appoint MIB on 16 March 2022 and
the conclusion of the SLA on 01 September 2022 were unlawful and invalid. The
Department failed to disqualify MIB for submitting an expired SACAP
registration certificate, which was a mandatory tender returnable. It could not
condone this non-compliance. This failure violated the principles of fairness and
competitiveness enshrined in Section 217 of the Constitution and the standards
set by the Supreme Court of Appeal in Babcock.
The conduct of counsel for the Department
[91] As to the conduct of Adv Montsho-Moloisane SC, I am constrained, as
unenviable as it may be, to extend a reminder to counsel of where her fealty lies
in respect of the administration of justice and the Court. A vitriolic attack was
exacted on the Court following the dismissal of the application for postponement
alluded to above, with counsel labelling the judgment and order of the Court a n
‘injustice to the client’. Adv Montsho-Moloisane SC and her junior consequently
withdrew as counsel for the Department, with a veiled threat from senior counsel,
that they would await the judgment of this Court.
[92] I can do no better than refer to the sentiments expressed in The Public
Protector of South Africa v The Chairperson of the Section 194(1) Committee and
Others17 (627/2023) [2024] ZASCA 131 (1 October 2024), where Ponnan JA
remarked as follows:
‘[46] In his address, on 6 June 2000, to the Advocates’ Society Spring Symposium entitled the
‘Role of the Courts and Counsel In Justice’, the then Chief Justice of Ontario, The Honourable
R Roy McMurty had this to say:
‘Lawyers are not solely professional advocates or “hired guns” . And while they do not
surrender their free speech rights upon admission to the Bar, they are also officers of the court
with fundamental obligations to uphold the integrity of the judicial process, both inside and
outside the courtroom. It is the duty of counsel to be faithful both to their client and to the
administration of justice.’
[47] The former Chief Justice of the Supreme Court of Victoria, the Honourable Marilyn
Warren put it thus:
‘The lawyer’s duty to the court is an incident of the lawyer’s duty to the proper administration
of justice. This duty arises as a result of the position of the legal practitioner as an officer of
the court and an integral participant in the administration of justice. The practitioner’s role is
not merely to push his or her client’s interests in the adversarial process, rather the practitioner
has a duty to “assist the court in the doing of justice according to law.” …
The lawyer’s duty to the administration of justice goes to ensuring the integrity of the rule of
law. It is incumbent upon lawyers to bear in mind their role in the legal process and how the
role might further the ultimate public interest in that process, that is, the proper administration
of justice. As Brennan J states, “[t]he purpose of court proceedings is to do justice according
to the law. That is the foundation of a civilized society.” When lawyers fail to ensure their duty
to the court is at the forefront of their minds, they do a disservice to their client, the profession
and the public as a whole.’ (footnotes omitted) (emphasis added)
and the public as a whole.’ (footnotes omitted) (emphasis added)
17 The Public Protector of South Africa v The Chairperson of the Section 194(1) Committee and Others
(627/2023) [2024] ZASCA 131 (1 October 2024).
Costs
[93] Costs follow the result. Bagale has been substantially successful in the
relief sought and is entitled to its costs, inclusive of the costs of counsel.
Order
[94] Consequently, the following order is made:
1. The decision to appoint and the appointment of MIB Infrastructure
Development (Pty) Ltd (‘MIB’) by the former Administrator of the North
West Department of Health through a letter dated 16 March 2022 as
consultants for architectural services for the planning, design and
commissioning of the upgrading of General De La Rey District Hospital
under tender NWDOH 31/2020 is declared unlawful, invalid and reviewed
and set aside.
2. The conclusion of the service level agreement dated 01 September
2022 between the North West Department of Health and MIB in respect of
the latter’s appointment as consultants for architectural services for the
planning, design and commissioning of the upgrading of General De La Rey
District Hospital under tender NWDOH 31/2020 is declared unlawful,
invalid and reviewed and set aside.
3. It is declared that the appointment of the Applicant as project
managers of the Lichtenburg Hospital turnkey project under tender DPW
055/08, which was amended to a traditional appointment by the North West
Department of Health is valid, lawful and enforceable.
4. The First and Second Respondents shall pay the costs of the
Applicant on Scale C of Rule 67 A, which costs shall include the costs of
counsel.'
AH PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
Appearances
For the applicant:
Instructed by:
For the respondent:
Instructed by:
Adv OK Chwaro SC
CJP Oelofse Attorneys
Lichtenburg
Adv L Montsho-Moloisane SC with Adv K Nondwangu
The State Attorney
Mahikeng