REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2024-131114
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED: NO
28 January 2026 Judge Dippenaar
In the matter between:
LTC HOLDING CC APPLICANT
and
JOHANNESBURG WATER SOC LTD FIRST RESPONDENT
BUILTPRO CONSTRUCTION (PTY) LTD SECOND RESPONDENT
NUTINOX (PTY) LTD THIRD RESPONDENT
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LEAVE TO APPEAL JUDGMENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e-mail and uploading it onto the electronic platform.
The date and time for hand -down is deemed to be 10h00 on the 28th of
January 2026.
DIPPENAAR J:
[1] The first respondent, Johannesburg Water SOC Ltd applies for leave to appeal
against the whole of the judgment and order handed down by this court on 12 December
2025. In terms of the order it was declared that tender JW OPS 003/23 lapsed prior to the
first respondent making any tender award, the first respondent’s decision to award the
tender to the second and third respondents was reviewed and set aside, as well as any
service level agreeme nts concluded by the first respondent with the second and third
respondents, the declaration of invalidity was suspended for 150 days, together with
ancillary relief. Leave is sought to the Supreme Court of Appeal
[2] Despite hitherto not participating in the application, a notice of intention to
participate was delivered by the third respondent, Nutinox (Pty) Ltd, on 8 January 2026.
Therein it was stated that the third respondent would rely on the same grounds as set out
in the first respondent’s application for leave to appeal. It delivered an application for leave
to apply for leave to appeal as well as separate written submissions. At the hearing, the
third respondent was represented by Adv Tsatsawane SC.
[3] I was advised by Mr Els SC, who appeared for the applicant, that it was agreed
between counsel that if leave to appeal were to be granted, the third respondent’s
application should be granted and its late participation should be condoned. Conversely,
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if leave was refused, the third respondent’s application should be refused. Mr Mokhari
SC, who appeared for the first respondent, did not object to this approach.
[4] In its application for leave to appeal, the first respondent raised various grounds
for leave to appeal. The first respondent contend ed that there are reasonable prospects
of success that another court would grant a different order as envisaged by s 17(1)(a)(i)
of the Superior Courts Act1. It also contended that there are compelling reasons why the
appeal should be heard as envisaged by s 17(1)(a)(ii) of the Act.
[5] Leave to appeal is sought by the first respondent on the following grounds: First,
the finality of the tender award and communication thereof. Second, misapplication of
Kirland and the functus officio principle. Third, the applica bility Takubiza.2 Fourth, the
applicability and legal status of the first respondent’s supply chain management policy.
Fifth, the incorrect rejection of the SCM policy where the applicant had not challenged it.
Sixth, the evidentiary burden and application of the Plascon Evans rule. Seventh, the
evidentiary threshold for proof of notification. Eighth, the service level agreements should
not have been declared invalid.
[6] In support of the existence of compelling reasons to grant leave to appeal, it was
submitted that the application raises an important and unsettled question of procurement
law, being whether a tender award must be communicated to the successful bidder within
the bid validity period to be valid.
[7] In sum the third respondent raised the following grounds: that the Supply Chain
Management Policy applied and was referred to in the tender documents and that the opt
out provision in the notification letter was ignored in the judgment . Second, that the
principles in Aventino3 applied. Third, the date on which the final award of the tender had
1 10 of 2013.
2 City of Ekurhuleni Metropolitan Municipality v Takubiza Trading & Projects CC 2023 (1) SA 44 (SCA).
3 Aventino Ecotroopers Joint Ventures and Others v MEC for the Department of Roads and transport,
Gauteng Province and Others 2025 (4) SA 419 (SCA).
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to be made had to be distinguished from the effective date of that decision, not being the
date on which decision of an award must be communicated to successful bidder.
[8] I have considered the papers filed of record and the grounds set out in the
application for leave to appeal as well as the parties’ extensive arguments for and against
the granting of leave to appeal. I have further considered the submissions made in the
heads of argument of the parties and the authorities referred to.
[9] Leave to appeal may only be granted where a court is of the opinion that the appeal
would have a reasonable prospect of success, which prospects are not too remote 4. An
applicant for leave to appeal faces a higher threshold5 than under the repealed Supreme
Court Act.6 A sound rational basis for the conclusion that there are prospects of success
must be shown to exist7.
[10] In applying the relevant principles to the grounds for leave to appeal when
measured against the facts, I conclude that the appeal would have a reasonable prospect
of success as contemplated in s17(1)(a)(i) of the Act. One of the grounds of appeal
relates to the applicability and legal status of the Supply Chain Management Policy. This
court had found that the Policy did not apply to the tender. In my view a reasonable
prospect exists that another court may come to a different conclusion and that the Policy
was referred to in the tender documents and was a binding regulatory instrument which
was applicable.8 If the Policy applies, it may well have a substantial impact on the issues
which arise in the matter and on the result. In light of this conclusion, it is not necessary
to deal with any of the other grounds advanced in any detail.
4 Ramakatsa and Others v African National Congress and Another [2021] JOL 49993 (SCA) para [10]
5 S v Notshokovu Unreported SCA case no 157/15 dated 7 September 2016, para [2]
6 59 of 1959
5 S v Notshokovu Unreported SCA case no 157/15 dated 7 September 2016, para [2]
6 59 of 1959
7 Smith v S [2011] ZASCA 15; MEC for Health, Eastern Cape v Mkhitha [2016] ZASCA 176, para [17]
8 As pointed out by the third respondent, there are references to the SCM policy in paras 16 and 45 of the
Invitation to tender documents.
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[11] It follows that the application must succeed. Considering the issues involved it is
appropriate that the matter be referred to the Supreme Court of Appeal. There is no basis
to deviate from the normal principle that costs are to be costs in the appeal.
[12] In accordance with the agreement between the parties, the third respondent’s
application for leave to apply for leave to appeal must also be granted. No costs were
sought save in the event of opposition. The application was not opposed.
[13] I grant the following order:
[1] The third respondent, Nutinox (Pty) Ltd, is granted leave to apply for leave to
appeal;
[2] Leave to appeal is granted to the Supreme Court of Appeal.
[3] The costs of the application for leave to appeal are to be costs in the appeal.
_______________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
GAUTENG JOHANNESBURG
HEARING
DATE OF HEARING : 26 JANUARY 2026
DATE OF JUDGMENT : 28 JANUARY 2026
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APPEARANCES
APPLICANT’S COUNSEL : Mr APJ ELS SC
APPLICANT’S ATTORNEYS : ALBERT HIBBERT ATTORNEYS
FIRST RESPONDENT’S COUNSEL : Mr WR MOKHARE SC
Mr I E TSHOMA
FIRST RESPONDENT’S ATTORNEYS : BUTHELEZI VILAKAZI INC
THIRD RESPONDENT’S COUNSEL : Mr K TSATSAWANE SC
THIRD RESPONDENT’S ATTORNEYS : KMNS INC