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[2026] ZAGPPHC 154
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South African Professional Auctioneers Association v National Treasury and Another (192750/2025) [2026] ZAGPPHC 154 (20 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No
:
192750/2025
(1)
REPORTABLE: No
(2)
OF INTEREST TO OTHER JUDGES: No
(3)
REVISED:
DATE
20 FEBRUARY 2026
SIGNATURE
In
the matter between:
THE
SOUTH AFRICAN PROFESSIONAL AUCTIONEERS ASSOCIATION
Applicant
and
NATIONAL
TREASURY
First
Respondent
THE
MINISTER OF FINANCE
Second
Respondent
This
judgment is prepared and authored by the Judge whose name is
reflected as such and is handed down electronically by circulation
to the parties / their legal representatives by email and by
uploading it to the electronic file of this matter on CaseLines.
The date for handing down is deemed to be 20
th
February
2026.
JUDGMENT
RETIEF
J
INTRODUCTION
[1]
On the 3 July 2025 the first respondent, National Treasury published
an open
tender on a centralised platform for the publication of
government tenders referred to as, the e-Tender Portal. The
publication
occurred through an online request for bid
via
a
tender notice for Tender No. RT46-2026 [tender notice]. The tender
notice described the bid as a call for professional services
for “
THE
APPOINTMENT OF CONTRACTORS TO PROVIDE VEHICLE FLEET MAMAGEMENT
SERVICES TO THE STATE FOR SIXTY (60) MONTHS
.”
[2]
The
applicant [Auctioneers Association], is an association who
is
acting in the interests of its members,
and
seeks
to
declare the manner in which National Treasury advertised the tender
notice unconstitutional on the basis that it violated the
requirements of a valid procurement process as set out in section
217(1) of the Constitution.
[1]
It contends that in seeking auctioneering services (Category E) the
tender notice failed to announce that auctioneering services
were
even being sought. Flowing from such declarator the Auctioneers
Association seeks,
inter
alias
,
to set the tender notice aside, alternatively, to set the portion of
Tender No. RT46-2026 [the tender] which specifically deals
with
auctioneering services, ‘Category E’ aside.
[3]
In consequence, Auctioneers Association, on an urgent basis, launched
the review
of National Treasury’s conduct in terms of section
1(c) of the Constitution, alternatively in terms of
section 6(2)(i)
of the
Promotion of Administrative Justice Act, 3 of 2000
[PAJA].
[4]
By way of background, the closing date for bid submissions in respect
of the
tender was the 11 August 2025. The tender validity period was
open for 180 (one hundred and eighty) days
expiring
on the 7 February 2026 [tender validity period], a date which was
prior to the hearing of this application.
It is common cause
that the new auctioneering contracts forming part of tender are to
commence on the 1 April 2026. In argument,
in contrast to the papers,
the 1 April 2026 instead of the 7 February 2026 became the trigger
date upon which urgency was pegged.
[5]
Prior to launching the application, the Auctioneers
Association
failed to obtain an undertaking from National Treasury to,
inter alia
, readvertise the tender with a more accurate and
inclusive description of the services it actually sought under the
rubric of vehicle
fleet management. On failure to obtain such
undertaking, the Auctioneers Association then launched this
application in terms of
rule 6(12).
Notwithstanding the urgency
relied on, National Treasury and the Second Respondent were provided
with the normal timelines to file
documents prescribed in terms of
rule 6(5).
In this way, the Auctioneer’s Association wished to
cater for any prejudice which may arise as a result of the manner in
which it launched the application whilst, at the same time, ensuring
that the matter was heard before the 1 April 2026.
[6]
National
Treasury and the Second Respondent [collectively and, for convenience
sake will be referred to as ‘National Treasury’]
opposed
the application and placed urgency in dispute. After a thorough
ventilation of urgency, this Court ruled that the matter
was indeed
urgent. In support, it noted that the consequence of delay in
bringing and adjudicating any tender challenge appeared
obvious and
the need to move swiftly trite.
[2]
The foreseeable prospect of prejudicial consequences flowing from any
delay, as a result of relief which seeks to disturb a tender
process,
as was before this Court, was apparent. In the absence of any
prejudice demonstrated by the National Treasury of its inability
to
be in a position to deal with the merits of the application, the
application was ruled as urgent and the matter proceeded on
this
basis.
[7]
Other than urgency a further preliminary point was raised by the
National Treasury
by way of an in
limine
point of non-joinder.
Both parties were
ad idem
that the non-joinder point would be
dispositive, at this stage, of the application and therefore, in the
event that the Court upheld
the point, the necessity to deal with the
merits of the application would not be triggered. It is therefore
convenient to deal
with this point first.
NON-JOINDER
[8]
At this stage it is not necessary to deal with the background facts,
most of
which are common cause, and if necessary, the same will be
dealt with when relevant.
[9]
In argument on this point, National Treasury argues that the
Auctioneers Association
has failed to join the participants in the
tender process who submitted bids. The reach of their argument
included their failure
to join two of
the
Auctioneers Association’s own members, Auction 24 and Rihlazan
Auctioneers. Both their members appeared to have responded
to the
tender notice seeking to
bid for auctioneer services.
[10]
The thrust
of National Treasury’s argument is that such participants to
the ongoing process, 52 (fifty-two) bidders, appear
to
have a direct and a substantial interest in the relief which the
Auctioneers Association seeks. This they contend is because the
order, ostensibly to set aside the tender notice or portion of the
tender, would affect all the bidders’ rights or interest
in a
just administrative process and an equitable tender process.
Therefore, if not joined and not provided an opportunity to be
heard,
their rights would be adversely affected or could likely be
affected.
[3]
Counsel for
National Treasury argued that the right to be heard, the
audi
alteram partem
principle, is of such fundamental importance in our law that a Court
may
mero
motu
raise the issue of joinder
[4]
.
[11]
In support
of this point, Counsel for National Treasury invited the Court to
consider the unreported decision of
Shine
Africa Financial Services (Pty) Ltd v Buffalo City Metropolitan
City
[5]
[Shine
Africa Case]. Laing J in the Shine Africa case upheld a non-joinder
point after applying the settled principle
reiterated
by the Supreme Court of Appeal [SCA] in the
Watson
[6]
matter namely that, any person is a necessary party and should be
joined if such person has a direct and substantial interest in
any
order that the Court might make; alternatively, if such an order
cannot be sustained or carried into effect without prejudicing
such
person, unless he or she has waived the right to be joined to the
particular facts before him. Of relevance, the facts before
Laing J
were similar as before this Court, in that the applicant wished to
disturb the tender process before the evaluation or
adjudication of
the bids had occurred and before there was any indication that any
final award had subsequently been made.
[12]
In
upholding the point, Laing J, reasoned that the question was not
whether the evaluation or adjudication of the bids had occurred
but
rather whether the bidders were necessary parties who should have
been joined. In order to answer the question, Laing J considered
the
nature of the order and then found that because the bidders for the
various tenders prepared and submitted their bids with
a view of
securing the appointment for the goods or services meant they had an
expectation for their bids to be evaluated, an expectation
of an
award to any one of the
m
and, the possibility of a lucrative contract arising. Therefore, any
relief which interdict their interests in that tender process
would
affect any one of them.
[7]
[13]
Auctioneers Association matter conversely argued that “
The
mere fact that entities may have submitted bids in a tender does not
entitle them to a right to be joined”
and that the test is
whether they have a legal interest in the relief being sought.
Furthermore, that such legal interest will only
exist after a bidder
had been appointed as only then will such a bidder possess an
accrued
right.
[14]
In
support for this proposition Counsel for Auctioneers Association
invited the Court to consider the
NQK
Communications and Consulting (Pty) Ltd v Nelson Mandela Bay
Metropolitan Municipality and Another
[8]
[NQK matter] in which Roberson J had to decide whether two successful
bidders should have been joined in circumstances when the
relief
sought was to set aside the tenders already awarded to them in the
second tender process
.
On
analysing the concept of what is meant by a ‘direct and
substantial interest’ and accepting that such is “…
.
an interest in the right which is the subject-matter of the
litigation and …..not merely a financial interest which is
only an indirect interest in such litigation’
[9]
Roberson J considered the subject matter of the application which was
before her and the effect a judgment would have on
a successful
bidder. As a fact before Roberson J, the party sought to be joined
was a successful bidder who had been awarded the
tender in the second
tender process. Contextually and on the facts Roberson J found that
any order seeking to disturb the bidders
accrued rights they
possessed by virtue of the tender already awarded to them would
constitute a legal interest in the subject-matter.
[10]
[15]
Context is everything. The successful bidders’
rights were but a factor, albeit weighty at the time, in the
determination
of the subject-matter of the litigation. Therefore, any
bidders accrued rights as a pre-requisite to fulfil the concept of a
direct
and substantial interest in the subject-matter as applying in
all matters is incorrect and the principle not established by
relying on the NQK matter and nor could it, as will be dealt with
below. Furthermore, the argument was unconvincing in that it
ignores
the fact that orders sought by parties in litigation, even in tender
applications, differ and, as such, the determination
of whether it is
necessary to join a party must be determined on a case to case basis.
No ‘one size fits all’ approach
applies.
[16]
From the relief sought Auctioneers Association wishes to terminate
the tender process
alternatively, to change the ambit or reach of the
tender document by severing ‘Category E’ from the
remaining services
in the tender. In other words, to disturb the
ability of have ones bid being evaluated after its submission
alternatively, to have
your bid evaluated on different terms
altogether. It is common cause that a bidder could have bid for the
rendering of service
in more than one category and it is trite that a
bidder who has submitted a bid in more than one category may have
done so by placing
more weight in one specific category rather than
another.
[17]
A bidder after submitting its bid surely has a right to a fair and
equitable process.
This includes on the terms consented to, the
‘rules of the game’ so to speak. From the moment of
submission all bidders
are locked into a process for a specific time.
This is referred to as a tender validity period. On the facts the
tender validity
period was 180 days from the closing date. This
application was launched during the validity period. The purpose of
the validity
period is not only to require bidders to keep their
offers open for the period but, to allow the State to make a final
award.
[18]
The
SCA in the
Ekurhuleni
Metropolitan Municipality v Takubiza Trading and Project CC and
Others
matter,
[11]
speaking to one of
the fundamental ‘rules of the game’, the validity period
and the ability to extend it confirmed
that to extend the validity
period all the bidders had to consent to an extension. This is
because all the bidders possessed an
interest in the right to a fair
equitable bidding process according to rules of that particular
tender.
[19]
It flows then that to disturb the rules of the game requires a buy in
from all the
bidders. Such requires their consent. Logically then to
seek to terminate the process itself or to alter the terms of
services
requires, at the very least, that they receive notice to
enable them to respond. That would be fair, transparent and
equitable.
The very requirements of section 217 of the Constitution
and the very basis upon which the Auctioneer Association relies on in
this application. Notice of the relief they did not get. Furthermore,
it is unclear on the papers whether the members of the Auctioneer
Association who submitted a bid received any notice of this
application.
[20]
This Court
having regard to all the factors therefore finds that all the bidders
have a direct and substantial interest in the order
sought by the
Auctioneers Association and
are
necessary to join. The point in
limine
is upheld. The Court is however acutely aware that the joinder of 52
(fifty-two) bidders at this stage during can become complicated
let
alone time consuming. Such complication the Courts have already
entertained. In the
Road
Accident Fund v Legal Practice Council
[12]
matter,
a matter in which thousands of parties were affected, the Road
Accident Fund took various steps to notify (potential necessary
parties) about the relief sought. In this matter the Court held the
following:
“
[T]
This matter, in my view, is one where the joinder of the
many thousands of parties, that could be affected by the
order of
this court, is unnecessary in the light of the steps taken by the RAF
to notify as many parties of its application as
possible. The steps
taken are adequate. The number of affected parties is
substantial, and the steps taken by the RAF to
notify the sheer
volume of parties that could be affected were sufficient to affect
their joinder. Only the seventeenth to twenty
third respondents
responded and were joined in these proceedings. The failure to
respond by those who were notified can be taken
to equate to a waiver
of the right to be joined.
”
[21]
In
this way, informal notification of a necessary party may suffice in
certain circumstances as this will allow a party to elect
whether to
join, or indicate unequivocally that it will abide by the decision of
the Court or not respond, which may equate to
a waiver of the right
to be joined.
[13]
The point
being that notification must be given so that the necessary party in
the proceeding can be permitted to exercise such
a right by making
submissions before the Court who adjudicates the dispute,
notwithstanding the fact that numerous parties may
be involved.
In
this way the fundamental right of the
audi
alteram partem
rule is upheld and a Court will too be in a position to discern
whether a party has clearly communicated its intention to abide
or
otherwise waive their right to participate in proceedings in which
they
participated.
This Court is of the view that that a similar approach should be
adopted as it will achieve a similar result as ordering
the
Auctioneers Association to apply for all the bidders to be joined.
COSTS
[22]
Counsel
for the Auctioneers Association as a general proposition and also
after arguing the merits of the matter, relied on the
Biowatch
principle
[14]
arguing that
because this application was a constitutional matter involving an
organ of State, the Auctioneers Association should
be shielded from
the obligation to pay costs to the State in circumstances where it
was unsuccessful.
[23]
It is so that the Auctioneers Association is
asserting a constitutional right but the upholding of a point
in
limine
is a preliminary step in
which this Court applies the laws pertaining to non-joinder and what
constitutes a direct and substantial
interest in respect of the order
sought by the Auctioneers Association. The merits of the matter in
which the aspect of asserting
constitutional rights has not been
entertained at this stage. Therefore, there is no reason why the
Auctioneers Association, at
this stage, should not bear the costs
attendant upon the point in
limine
.
[24]
Therefore, the following order:
1.
The point in
limine
of non-joinder is upheld.
2.
The application is postponed
sine
die
.
3.
In the event the Applicant wishes to persist
with the application, it is to notify all of the bidders of
Tender No RT46-2026
published on the 3 July 2025 and whose
particulars are available on the First Respondent’s website,
within 10 (ten) days
of this Order, alternatively and, only if such
particulars are not available on the First Respondent’s
website, the First
Respondent is ordered to provide such particulars
to the Applicant within 10 (ten) days of such request.
4.
The Applicant is to pay the costs the First and
Second Respondents’ costs attendant upon the point in
limine
,
Counsel’s fees to be taxed on scale C.
L.A.
RETIEF
Judge
of the High Court
Gauteng
Division
Appearances
:
For
the Applicant:
Adv K
Hopkins SC
Cell:
(083) 325 5700
Email:
kevin@kevinhopkins.co.za
Instructed
by attorneys:
Sibeko
Incorporated Attorneys
Tel:
(010) 549 1333
Email:
sakhile@sibekomaziya.co.za
Ref:
LIT11302
For
the First Respondent:
Adv D
Sive
Cell:
(083) 397 3470
Email:
daniel@sivelaw.com
Instructed
by attorneys:
State
Attorney: Pretoria
Email:
ichowe@justice.gov.za
thabang.mashabela@treasury.gov.za
For
the Second Respondent:
Adv D
Sive
Cell:
(083) 397 3470
Email:
daniel@sivelaw.com
Instructed
by attorneys:
State
Attorney: Pretoria
Email:
ichowe@justice.gov.za
Thabang.mashabela@treasury.gov.za
Date
of hearing:
30
January 2026
Date
of judgment
:
20
February
2026
[1]
Section
217 of the Constitution states that:
‘
217.
Procurement
(1)
When an organ of state in the national, provincial or local sphere
of government, or any other institution
identified in national
legislation, contracts for goods or services, it
must
(own emphasis) do so in accordance
with a system
(own emphasis) which is fair, equitable, transparent, competitive
and cost-effective.
”
[2]
Infinite
Blue Trading 29 CC t/a Motau Projects v City Power Johannesburg
(SOC) Limited and Others
[2019] ZAGPGHC 169 (30 May 2019) at par 27.
[3]
SA
Riding for the Disable Association v Regional Land Claims
Commissioner
2017
(5) SA 1
(CC) at par 9.
Snyders
v De Jager (joinder)
2017 (5) BCLR 604
(CC) at par 9.
[4]
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 659.
[5]
Unreported case number
EL1056/2022.
[6]
Watson
N.O
.
v Ngonyama
2021 (5) SA 559
(SCA) at par [52].
[7]
Judicial
Service Commission and Another v Cape Bar Council and Others
2013 (1) SA 170
(SCA) at par [12].
[8]
(174/2019) [2020] ZAECPEHC 11
(5 May 2020).
[9]
Supra
at par [8], including the list of authorities relied on.
[10]
Supra
at par [9 -11].
[11]
Ekurhuleni
Metropolitan Municipality v Takubiza Trading and Project CC and
Others
2023 (1) SA 44
(SCA) at par [13].
[12]
2021 (6) SA 23
(GP) at par [10].
[13]
In re:
BoE
Trust Limited and Others
N.N.O
2013 (3) SA 236
(SCA), at 242A-C.
[14]
Biowatch
Trust v Registrar, Genetic Resources and Others
2009 (6) SA 232
(CC).