IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : AS0/2024
( l) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Dote
In the matter between: -
THABISO HAMIL TON NDLOVU
HAMIL TON HOLDINGS {PTY) LTD
HAMIL TON PROJECTS CC
FELIHAM (PTY) LTD
And
SPECIAL INVESTIGATING UNIT (SIU)
NATIONAL HEAL TH LABORATORY SERVICES
(NHLS)
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
FOURTH APPELLANT
FIRST RESPONDENT
SECOND RESPONDENT
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ZAISAN KAI HA TSU (PTY) LTD
REGISTRAR OF DEEDS, PRETORIA
BUGATTI SECURITY SERVICES AND
PROJECTS(PTY)LTD
VICTOR NKHWASHU ATTORNEYS INC
ZAHERR CASSIM NO
COMMISSIONER OF THE SOUTH AFRICAN
REVENUE SERVICES
AKAN NI TRADING AND PROJECTS (PTY) LTD
MOK PLUS ONE (PTY) LTD
ABOMPETHA(PTY)LTD
JORIT ANS LOGISTICS (PTY) LTD
PERSTO (PTY) LTD
KGODUMO MOKONE TRADING
ENTERPRISE (PTY) LTD
JUDGMENT
CORAM : BAQWA Jet LESO AJ
THIRD RESPONDENT
FOURTH RESPONDENT
FIVETH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHT RESPONDENT
NINTH RESPONDENT
TENTH RESPONDENT
ELEVENTH RESPONDENT
TWELFTH RESPONDENT
THIRTEENTH RESPONDENT
FOURTEENTH RESPONDENT
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BAQWAJ
Introduction
[1] This is an appeal against the order and the judgment handed down on 7 June
2022 by Modiba J in the Special Tribunal in terms of which the decisions of
National Health Laboratory Service ('the NHLS') to award various contracts to the
appellants were reviewed and set aside and the appellants were directed to make
repayment of R158 850 921 .13, including interest at the prescribed rate calculated
from the date the NHLS made payment pursuant the impugned contracts.
[2] The appeal to the full court follows the automatic right of appeal in terms of section
8(7) of the Special Investigating Unit and Special Tribunals Act 74 of 1996.
[3] The appeal however, subsequently lapsed because it was filed and was not
prosecuted on time. The appellants brought an application for condonation of the
late filing of the appeal and its reinstatement.
[4] The first and second respondents opposed both applications .
[5] For convenience , the first appellant , Thabiso Hamilton Ndlovu, the second
respondent, Hamilton Holdings (Pty) Ltd, the third respondent, Hamilton Projects
CC and Feliham (Pty) Ltd will be jointly referred to as the appellants . The name of
the first appellant will be used interchangeably where required, and the acronym
'SIU' to refer to the Special Investigating Unit and the acronym NHLS to refer to
the National Health Laboratory Service.
The Review Judgment
[6] In order to outline the background , I propose to make a brief reference to the
judgment of the Special Tribunal.
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Summary of the Special Tribunal Judgment
6.1. The NHLS entered into nineteen contracts for the purchase of PPE's
between March and April 2021 with eight companies which were under
the control of the first appellant (the Fronting Companies) which were
declared invalid and set aside as unlawful (the impugned transactions) .
6.2. The emergency procedures applied by the NHLS to procure the PPEs
were fraudulently exploited by the first appellant and the Fronting
Companies, resulting in the impugned transaction being reviewed due
to non-compliance with the prescribed procurement procedures by
NHLS officials and fraud on the part of the first appellant and the fronting
companies.
6.3. The first appellant was found to control the following companies: Bugatti
Security Services and Projects (Pty) Ltd, Hamilton Holdings (Pty) Ltd,
Hamilton Projects CC, and Feliham (Pty) Ltd, and to have channeled
funds through them for his benefit and that of his family members.
6.4. It was established that the NHLS had paid R172 742 175.00 to the
company fronting in respect of the impugned transactions , with only
R13 891 253.87 being found to have been used for the purchase of
PPEs to supply to the NHLS. The balance of the funds were found to
have been diverted for the first appellant's personal use. First appellant
was held liable, jointly and severally with all except one of the fronting
companies, for the repayment of the amount R172, 742, 175.00, less
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the cost of sourcing the PPEs, namely (R 13 891 253.87), and less
certain amounts retained by Abompeta, Mok Plus One, Persto, and
Kgodumo, which they tendered to repay the NHLS.
6.5. The total repayment by the first appellant was R158 850 921 .13.
[7] Notably, in his answering affidavit in the review application by the SIU and NHLS,
the first appellant avoided dealing with the direct incriminating allegations against
him.
7.1. By way of illustration, the SIU and NHLS alleged that the fronting
companies were controlled by the first appellant, who was the direct or
indirect beneficiary of the funds (approximately, R 172 million) paid to
them by the NHLS and that instead of operating at arms length and in
competition with each other to supply the PPE's to the NHLS at the best
available prices the companies operated as a front through which first
appellant could obtain multiple contracts from the NHLS at excessive
prices without revealing his involvement with each of them. This
allegation was not dealt with in his answering affidavit.
7.2. In paragraph 27 of the review application by the SIU and NHLS it is
stated that the fronting companies had fraudulently violated the
provisions of section 217 of the Constitution. There was no response
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7.3. The SIU and NHLS further presented evidence to the effect that the
contract that was awarded to Kgodumo (the fourteenth respondent, one
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of the fronting companies), without any quotation from suppliers being
sourced and compared. Resultantly, the contract was procured at a
grossly inflated price. The unit price of the coats provided by Kgodumo
for the four sizes are R320.00, R343.00, R370.00 and R390.00. The unit
price of a lab coat provided by Pinnacle PPE in respect of a similar
transaction with NHLS is R17.50. When dealing with this issue, the first
appellant simply side-stepped it by passing the blame to the employees
of NHLS for the excessive pricing as if the corrupt and unlawful scheme
was being condoned by the said employees and not an act perpetrated
through the fronting companies.
7.4. The first appellant responded as follows in his answering affidavit
"15. The Respondent, and/or any other bidding party, cannot be blamed
for the propriety or impropriety of the decisions of the NHLS in this
regard. It was entirely up to the NHLS to decide the time period to be
allowed for bidding on their own requirements. 16. Second, insofar as
the appellants allege that they agreed to excessive prices, I submit that
the respondents submitted quotations (in the sense of an offer) which
was subject to the Second Applicant's approval or rejection. 17. To the
extent that the Second Appellant accepted the offer, notwithstanding that
the prices were excessive (as the founding affidavit alleges), the
Respondents submit that the proprietary or impropriety of such a
decision rests squarely with NHLS and cannot be attributed to the
Respondents. "
7.5. Notably, and along with the strategy of blaming the NHLS, it is a matter
of record that the first appellant conceded in the Notice of Appeal as
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follows in this regard: "The information presented to the Respondents,
in the present day circumstances, objectively establish illegality". In this
regard, therefore, the notice of appeal does not seek to revisit the finding
of the Special Tribunal that the impugned transactions were unlawful.
[8] It is worth noting that the Heads of Arguments presented in this appeal and the
argument in support thereof seek to challenge the very concessions made by the
first appellant in the notice of appeal. In this regard the argued appeal seems to
bear no resemblance to the grounds of appeal in the notice of appeal. There is
neither an explanation nor an application for an amendment in this regard.
The lapse of the appeal
[9] After the dismissal of the initial application for leave to appeal on 7 September
2022 , the first appellant, Hamilton N Holdings, Hamilton Projects and Feliham
delivered their Notice of Appeal to the full court. In terms of Rule 49(6) the
applicants had 60 days to deliver the record and apply for a hearing date, that is
during January 2023.
[1 O] On 19 June 2023 when a copy of the record was delivered by Makhaye Inc
Attorneys, it was brought to their attention by the NHLS and SIU Attorneys that the
appeal had lapsed.
[11] No further action was taken in this regard until 18 June 2024 when the applicants ,
then represented by ENS filed a notice of intention to amend their grounds of
appeal in terms of Rule 28 of the Uniform Rules of Court. That notice intended to
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amend the notice of appeal of 5 October 2022 by deleting the existing grounds of
appeal and replacing them with new ones. These were among others that the
Tribunal impermissibly relied on hearsay evidence, made findings of fraud where
the alleged fraud was not proved, that the prescribed procurement procedures
were fully complied with, that the evidence of the NHLS employees was
"suppressed" which would have shown that the contracts were awarded to
suppliers which dropped off business cards at the NHLS reception, that pricing
was not excessive and that PPE was delivered at the agreed prices.
[12]The SIU and NHLS objected to the proposed amendment on the basis that the
notice purported to amend a notice of appeal that had lapsed. That notice to
amend was not pursued any further.
[13] However, irrespective of the fact that the grounds of appeal were not amended as
a result of the objection , the appellants have proceeded to argue the appeal as if
the proposed amended grounds were the actual grounds of appeal in the notice
of appeal. This appears to be a fundamental error by the appellants. There has
been no explanation why this was done, why it was justified or why it should be
permitted.
The application for reinstatement
[14]The application for reinstatement was launched on 17 July 2024, eighteen months
past the lapsing of the appeal and the replying affidavit in the reinstatement
application was filed on 27 September 2024. The appellants took steps to file the
heads of arguments and apply for a date of hearing in March and April 2025. The
further delay was not explained by way of evidence on affidavit. An attempt was
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made through submissions in the heads of arguments concerning the reasons for
this part of the delay which has no evidentiary value. Consequently , the delay
remains unexplained.
Condonation
[15] It is trite that the standard for considering an application for condonation is the
interests of justice and that an application for condonation must give a full
explanation for the delay. It is equally trite that the explanation must cover the
entire period of the delay and that the explanation must be reasonable. Van Wyk
v Unitas Hospital.1
Explanation for delay partial and superficial
[16]The explanation for the delay, so the respondents argue, is not only superficial
and partial but also dishonest. The explanation by the first appellant is that:
16. 1. "Pursuant to the granting of the SARS order and the subsequent placing of
the Appellant, including myself, under curatorship, ran out of money to
prosecute the appeal".
16.2. Makhaye Inc, which had assisted with the appeal withdrew in August 2023
due to the lack of funds.
1 Van Wyk v Unitas Hospit al (Open Democrat ic Advice Centre as Amicus Curiae) 2008 (2) SA 472
(CC) [22]
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16.3. In December 2023, the Appellants engaged the services of Mr Molepo of
ENS on the basis of a contingency fee "arrangement ".
16. 4. Mr Molepo started dealing with the appeal and other proceedings in mid
January 2024.
16.5. Mr Molepo started preparing the application for condonation in February
2024 but then "discovered that" the appellants were all deregistered by
CIPC in January 2024.
16. 6. The companies were reinstated on 16 April 2024.
16. 7. It is then said "pursuant thereto, Mr Molepo commenced with this application
and took steps to procure a copy of the appeal record from Makhaye Inc.
16. 8. On July 2024 the application for re-instatement was instituted.
The explanation
{1 ?]The first leg of the explanation is that they ran out of money to brief attorneys and
counsel and to prosecute the appeal. This challenge, they say, was only solved
when Mr Molepo agreed to assist "on a contingency arrangement ".
[1 B]The second leg is that after the work began on the condonation it was discovered
that the appellant companies had been deregistered. This is said to have brought
the preparation to a halt until the reinstatement of the companies in April 2024.
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The explanation peters out. There is no explanation regarding what happened
during the three-month period from 16 April until the launch of the condonation
application on 17 July 2024. I agree, as the respondents submit, that this omission
is fatal to the application as it is also trite that an appellant must apply for
condonation without delay subsequent to the discovery of the lapse and give a full
account for the reasons of the delay which explain the whole period of delay.
Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd. 2
[19] No reason is tendered for downing tools after the discovery of the deregistrat ion
of the fronting companies. An application for condonation could have been
prepared whilst preparing to re-instate them. Moreover, the first appellant who is
the principal appellant, is not a company and he was unaffected by the
de registration.
[20]The only logical conclusion is that deregistration is nothing but a lame excuse
which fails to justify why it took some seven months to launch the condonation
application after Molepo had come to the applicant's rescue.
Dishonesty in the "contingency arrangement"
[21) The respondents submit that the logical import of the allegation that a contingency
fee arrangement was entered into is that such arrangement was in terms of the
Contingency Fees Act 66 of 1997, which requires that such an agreement be in
writing.
2 Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd 2017 (6) SA 90 SCA [26).
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[22] It is common cause that the word "arrangement " was used by first appellant in his
affidavit and not "agreement". A notice in terms of Rule 35(12) asking for a copy
of the agreement was served on the applicant's attorneys and it was responded
to by the applicants saying "No document is referred to at paragraphs 44, 46 and
50 and accordingly the request is declined".
[23] In his replying affidavit Mr Hamilton Ndlovu provides the following explanation for
the financial arrangement between him and Mr Molepo:
"53. I did not conclude any contingency fee agreement with ENS, neither did the
appellants conclude such an agreement,
54. When I met with Mr Molepo, I raised the issue of the contingency fee
arrangement, to which he indicated that he would not be in a position to assist
myself and the appellant on the basis of a contingency arrangement.
55. Mr Molepo however understood to accept the mandate without a deposit or
available funds until such time as myself and the appellants were able to obtain
the funds to pay him. My mandate and that of the Appellants was accepted by Mr
Molepo on that basis".
[24] Notably however there was no confirmatory affidavit by Mr Mole po and on 12
November 2024 ENS withdrew as applicant's attorneys.
[25]There is however no getting away, so the respondents argue, from the impression
created that a contingency fee agreement had been entered into to explain how
he was able to afford top-shelf legal representation despite his pleas of poverty.
[26]They submit further that the lack of candour detracts from his credibility and in the
absence of confirmation from ENS, the story in his replying affidavit that ENS
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agreed to act for fees that would be paid when Hamilton Ndlovu obtained funds
and to brief counsel without a deposit is palpably improbable.
[27] The respondents further submit that the lack of candour regarding the contingency
fee arrangement and Ndlovu's assertions (unsupported by any evidence) that he
did not have access to funds to prosecute the appeal ought to be taken with a
pinch of salt. They ought to be viewed from the background of the SIU and NHLS
having adduced evidence disputing the allegation and showing that the applicants
were well able to source funds for litigation which was preceded with when it suited
them during the relevant period in the present matter. At the same time Hamilton
Ndlovu was able to fund lavish trips to and purchases in Paris which were not
denied.
[28] In his replying affidavit he stated that his brother-in-law paid for the defence of the
criminal proceedings; he was the "plus one" of his brother on a free trip to Paris
paid for by the House of Givenchy, an assertion which the respondents submit is
uncreditworthy. There is no list of assets and liabilities or any evidence as to the
financial position of the applicants. They merely repeat the same excuse that they
ran out of money without any supporting evidence as to their financial position
and/or ability to obtain finance.
Prospects of success
[29]Another critical consideration in deciding the issue of condonation and re
instatement of the appeal is the prospects of success of the appeal.
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[30) I consider it apposite in this regard to make reference to excerpts from the
judgment of the Special Tribunal. At paragraphs 8 and 9 thereof the following was
said:
"{8] All the opposing respondents accept the applicant's version that when the
NHLS officials ordered PPE's supplies from the fronting companies, they failed to
comply with the applicable procurement procedures. Although Hamilton Ndlovu.
And the companies he represents takes issue with what they allege is a delay in
instituting the review application ultimately, they take no issue with the impugned
transactions being reviewed and set aside for lack of compliance with the
applicable prescripts. Although Hamilton Ndlovu did not answer to the allegations
of fraud against him and the companies, he represents ad seriatim, he largely
denies the a/legations. He also disputes as alleged by the applicants, that the
impugned transactions were without cause because no PPEs were delivered to
the NHLS. He asserts the right to recover all the costs he and the companies he
represents incurred when they supplied PPEs to the NHLS in accordance with the
no profit no loss in All Pay.
[9] The rest of the fronting companies have tendered repayment of the amounts
retained or Hamilton paid them from funds deriving from the impugned
payments. They plead that they should not be held liable to the NHLS for the
full amount the applicants seek to recover in these proceedings jointly and
severally with Hamilton Ndlovu and the companies he represents".
[31 ]At paragraph 30 to 35 of the judgment the following was said:
"[30] Hamilton Ndlovu was the director of Hamilton Holdings, and his wife was the
director of Feliham. He used the fronting companies to procure PPE supplies
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to the NHLS. Although he barely denies making false representations to any
NHLS officials regarding his involvement in the fronting companies, on his own
version and on the version of the fronting companies, they were dormant. He
actively marketed them. None of the fronting companies were in the business
of or had any track record in PPE supplies. NHLS officials bent the rules to
favour the fronting companies. According to the NHLS officials who offered
explanations regarding how these unqualified companies came to supply
PPEs to NHLS, in each of the cases of the opposing respondents, an
unidentified person was said to have dropped off a business card on an
unspecified date, and on the basis of this introduction was invited to quote,
and an order was placed with the fronting companies. There is no evidence
anywhere on the record that the NHLS officials invited quotations or granted
contracts to any other supplier on the basis of them simply dropping off a
business card."
[31] On the version of the Bugatti, Mok Plus One, Persto and Kgodumo , none of them
submitted quotations to the NHLS or were in any way invited in the procurement
of PPE supplies to the NHLS. Hamilton promised to procure tenders on their
behalf. It was for that reason that they gave him control of their companies.
Therefore, the directors of the companies allowed Hamilton to use their companies
as a front to do business with the NHLS. He submitted quotations on behalf of the
companies. When orders were placed, he supplied PPEs on their behalf. Since he
was not a director or employee of the fronting companies, he concealed his
involvement in the companies. It is under these circumstances that NHLS
approved the quotations submitted by these companies and issued them with
purchase orders. He emptied the bank accounts of the fronting companies as soon
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as NHLS made the impugned payments to these companies. He has not disputed
this version.
[32] Hamilton N Holdings was ostensibly invited to quote telephonically instead of by
email. Its quotation was approved prior to the closing date. The impugned
transactions with Joritans and Kgodumo were effected without any other bidders
being invited to quote. PPEs were procured from Feliham while on the restricted
supply list.
[33] On Hamilton Ndlovu's version, his company , Hamilton Holdings, sourced PPEs
and was the onward selling entity to the other opposing respondents. Therefore ,
Hamilton Ndlovu traded PPEs between the fronting companies as a result of which
they supplied PPEs to the NHLS at excessive prices when the same goods were
available from other suppliers at a much lower price.
[34] Kgodumo supplied to the NHLS gloves bought from Mok Plus One for R5.10. The
same gloves were available from other suppliers at RO. 95. Other bidders had not
been invited to quote. There was no instruction to buyers to procure the latex
gloves from Abompetha for R4. 99. The gloves were available from another
supplier at RO. 70c. Gloves were purchased from Bugatti for R4. 95 without
comparative quotations when they were available from another supplier for
R0.70c.
[35] On the authority in Swifambo , these inexplicable actions by NHLS officials to
benefit Hamilton Ndlovu through Hamilton and the fronting companies justify an
interference of corruption. This interference is further supported by the fact that
almost 90% of the funds acquired through the impugned payments made its way
to the accounts held and controlled by Hamilton Ndlovu or members of his family
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and the bulk of the funds was spent on acquiring assets and on luxurious
consumption. The SIU investigation revealed that in just a few months, Hamilton
Ndlovu spent tens of millions of Rands of the funds deriving from the impugned
payments on cars (R 18 million), houses (R38 million), furniture and fittings for the
houses (R5,8 million). He placed approximately R50m in investment accounts. He
withdrew approximately R16 million as cash."
Turpitude
[32]The above quotations from the judgment of the Special Tribunal demonstrate in
the clearest terms the extent of the irregularities and turpitude in which the
applicants were involved and the basis on which the tribunal made its order. More
importantly, they underline the unequivocal manner of the concession made by
the principal appellant leading to the granting of the order. The facts underlying
the concessions were made under oath in evidence tendered by way of affidavits
before the tribunal. There was therefore no misdirection on the part of the tribunal
when it made findings and conclusion on the basis thereof.
[33]What is also clear is that:
33.1. The majority of the fronting companies were empty shells incapable of
and not qualified to supply PPEs which pretended to be independent
entities conducting legitimate business in competition with each other
when they were in fact a mere front for Hamilton Holdings and Hamilton
Ndlovu.
33.2. There was no bona fide intention to supply PPEs to meet NHLS
requirements. As the flow of funds report demonstrated 90 per cent of
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the funds paid by NHLS went to Hamilton Ndlovu or companies
controlled by him.
33.3. The record shows that none of these companies adduced evidence
establishing that PPE was delivered to the NHLS in quantities specified
in the purchase orders and none alleged that they were in the business
or had any track record in supplying PPEs.
33.4. It is patently clear that the impugned transactions were procured in
flagrant breach of the principle of legality and the constitutional principles
of transparency , competitiveness and cost-effectiveness as provided for
in section 217. Consequently , the procurement decisions were made
sine causa and were invalid.
33.5. Evidently Hamilton Ndlovu was the controlling mind of the fronting
companies which clearly did not function as independent entities but as
his alter ego. He was the author of the fraudulent scheme to defraud
NHLS, the strategy of which was as follows:
Firstly, he identified NHLS as the potential target due to the fact that they,
as a service provider, were prepared to settle invoices within 30 days.
Secondly , he set about establishing a business relationship by marketing
the fronting companies to NHLS by inter alia, dropping business cards
whilst carefully concealing that he was their controlling mind and that
whatever was paid by NHLS would ultimately be transferred into his bank
accounts. He virtually assumed the status of a sole supplier without
making the required disclosures to the NHLS. He thereby fraudulently
avoided compliance with the requisite prescripts.
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[34] It can therefore not be credibly submitted or argued that there are any prospects
of success of an appeal against the judgment and order of the Special Tribunal.
Submissions by applicants to this Court
[35]As alluded to above, on 10 October 2022, the applicants delivered a notice of
appeal to the Full Court, and on 18 June 2024, they filed a Notice of Intention to
amend the grounds of appeal in terms of Rule 28 of the Uniform Rules of Court.
The notice intended to delete the existing grounds of appeal and to replace them
with new ones.
[36]The new grounds were, inter alia, that the Tribunal impermissibly relied on hearsay
evidence, made findings of fraud where fraud was not proved, that the
procurement procedures were fully complied with, that the evidence of the NHLS
was "suppressed" that would have shown that contracts were awarded to
suppliers which dropped off business cards at the NHLS reception, that pricing
was not excessive and that, that issue ought to have been dealt with by the
Competition Commission.
[37]The proposed amendment was objected to by the SIU and the NHLS as it
purported to amend a notice which had lapsed. The applicants took no further
steps regarding that notice to amend.
[38] Despite the fact that the grounds of appeal were not amended due to the objection,
the applicants have proceeded to argue the appeal as if the proposed amended
grounds were indeed the grounds of appeal in the notice of appeal, which is not
the case. No attempt was made to explain why this was justified or permissible. In
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S v Baloyi, 3 it was held that a notice of appeal is not just an informal document
which could be disregarded at will. It forms the very basis upon which an appeal
must stand or fall.
Case to be argued as per the case record
[39) It is trite that, unless this court has ordered otherwise, the applicants were
expected to argue their application on the basis of the case presented before the
Special Tribunal. The proposed amended grounds refer to matters that were not
argued before the Special Tribunal and arise out of an application which was not
granted by this court. In my view, it is not appropriate to sidestep that issue by
simply referring to the new grounds as an explanation or extension of the original
grounds of appeal. The appellants committed an irregularity of simply attempting
to introduce new grounds of appeal via heads of argument.
New defence on appeal
[40) The issue of a new defence on appeal was dealt with in Homi Lifestyle (Pty) Ltd
and Another v Unemployment Insurance Fund and Another.4
[41] I can do no better than by referring to the that judgment and to illustrate the point.
I refer to paragraph 18:
" [18] Leave to raise a new defence on appeal is not for the asking. It is given only
in certain circumstances. The reason for this is obvious: An appeal court
3 S v Baloy i 1991 (1) SACR 265 (B) at 267 C-1
4 (Appeal) (13443/2023 {2025) ZAGPPHC 630 (17 June 2025).
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considers and must pronounce on the cogency of the judgment of the court
a quo. Logically, it must, as a rule, do so in light of the case presented to
that court. To consider a different case than that turns the appeal into a
rehearing of the matter rather than an assessment of the court a quo."
Conclusion
[42]The omissions committed by the appellants in the condonation application and, in
particular , the failure to provide a full explanation regarding the period which led
to the lapsing of the appeal, lead me to one conclusion, namely, that condonation
ought not to be granted.
[43]The appellants made an application to amend the grounds of appeal contained in
their notice of appeal through a notice to amend, and upon objection by the
respondents to the amendment application on the basis that the Notice to Appeal
had lapsed, that application was never followed up on. Instead, the applicant using
the new grounds contained in the notice of amendment have utilised those
grounds to make their submissions despite the fact that the amendment was never
granted by this court. No explanation was proffered for this approach by the
appellants , nor was it explained whether to do so was permitted.
[44]What is even more puzzling is that in their new grounds, an attempt is made to
introduce matters which were never raised before the Special Tribunal. It is
puzzling because the concessions made by the appellants regarding the review
and setting aside of the impugned transactions were clear and unequivocal as set
out in the judgment itself. The appellants were legally represented.
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[45] I am therefore not persuaded that there was any misdirection on the part of the
Special Tribunal on any matter when it made its order, be it in regard to the
application of the law or the facts.
[46] I do not consider the findings made at the hearing by the Tribunal to be wrong in
law as suggested by the appellants in their submissions. Their reference to
Matatiele Municipality v The President of the Republic of South Africa5 is
misplaced. It does not assist them in the appeal.
[47] Further, their argument, for example, that matters regarding excessive pricing
ought to have been referred to the Competition Commission is equally misplaced.
Instead, it demonstrates a misunderstanding of how that issue came to be raised
by the SIU before the tribunal. It was raised to demonstrate the extent of the fraud
committed by the appellants in order to effect maximum gains in extracting as
much money as possible from the NHLS. The suggestion , therefor e, that the
matter ought to have been dealt with in terms of section 8 of the Competition Act6
89 of 1998 is a new matter which was not raised by the Special Tribunal. It cannot,
therefore , together with the other grounds be raised on appeal. For this court to
accept the submissions by the appellants would be to commit the very mischief
warned against in the Homi Lifestyle decision.
[48] In light of the above, I am of the view that the submissions by the appellants
demonstrate the absence of prospects of success instead of assisting them in this
5 Matatiele Municipality v The President of South Africa 2006 (5) SA 47 (CC).
6 Competitio n Act 89 of 1998.
22
J.T LESO
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 11 September 2025
Date of Judgment: 12 February 2026
APPEARANCES:
For the Appe llants: Adv M SALUKAZANA
Tel No: 012 481 3500
njauj@rontgenlaw.co.za
For the Respondents: ADV B ROUX SC
082 337 4777
roux@rsabar.com
ADV I CURRIE
ATTORNEY RWATTO RNEYS INC
CONTACTS Tel No: 012 452 4000
24
[45] I am therefore not persuaded that there was any misdirection on the part of the
Special Tribunal on any matter when it made its order, be it in regard to the
application of the law or the facts.
[46] I do not consider the findings made at the hearing by the Tribunal to be wrong in
law as suggested by the appellants in their submissions. Their reference to
Matatiele Municipality v The President of the Republic of South Africa5 is
misplaced. It does not assist them in the appeal.
[4 7] Further , their argument, for example , that matters regarding excessive pricing
ought to have been referred to the Competition Commission is equally misplaced.
Instead, it demonstrates a misunderstanding of how that issue came to be raised
by the SIU before the tribunal. It was raised to demonstrate the extent of the fraud
committed by the appellants in order to effect maximum gains in extracting as
much money as possible from the NHLS. The suggestion , therefore , that the
matter ought to have been dealt with in terms of section 8 of the Competition Act6
89 of 1998 is a new matter which was not raised by the Special Tribunal. It cannot,
therefore, together with the other grounds be raised on appeal. For this court to
accept the submissions by the appellants would be to commit the very mischief
warned against in the Homi Lifestyle decision.
[48] In light of the above, I am of the view that the submissions by the appellants
demonstrate the absence of prospects of success instead of assisting them in this
5 Matatiele Municipality v The President of South Africa 2006 (5) SA 47 (CC).
6 Competition Act 89 of 1998.
22
appeal. That is one of the key considerations in an application for condonation and
re-instatement.
Order
In the result I propose that the following order be made .
48.1. The application for condonation for the late filing of the appeal and re-instatement
is dismissed.
48.2. The applicants are ordered to pay the costs of the appeal jointly and severally ,
the one paying, the other to be absolved, on an attorney and client scale which
shall include the costs of two counsel.
SELBY BAQWA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
I agree
23
J.T LESO
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 11 September 2025
Date of Judgment : 12 February 2026
APPEARANCES :
For the Appellants:
For the Responden ts:
ATTORNEY
CONTACT S
Adv M SALUKAZANA
Tel No: 012 481 3500
njauj@rontgenlaw.co.za
ADV B ROUX SC
082 337 4777
roux@rsabar.com
ADV I CURRIE
RWATTO RNEYS INC
Tel No: 012 452 4000
24