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[2026] ZAGPJHC 300
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Canyon Blue Group (Pty) Ltd and Another v Eskom Holdings SOC Limited and Others (2026/022250) [2026] ZAGPJHC 300 (25 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number:
2026-022250
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
In
the matter between:
CANYON
BLUE GROUP (PTY) LTD
First Applicant
MATEBELLO
MABATHO MABYE
Second Applicant
And
ESKOM
HOLDINGS SOC LIMITED
First Respondent
CHAIRPERSON
OF THE SUPPLIER
REVIEW
COMMITTEE
Second Respondent
MINISTER
OF FINANCE
Third Respondent
JUDGMENT
STRYDOM, J
[1]
Canyon Blue Group (Pty) Ltd (“Canyon”
or the “applicant”) is a supplier to Eskom Holdings SOC
(Pty) Ltd
(“Eskom”). Canyon has provided, amongst other
services, vegetation management services to Eskom at various Eskom
sites
around the country. These services have been provided in terms
of various agreements over a few years.
[2]
Eskom received complaints concerning Canyon
regarding irregular procurement. These complaints were subsequently
investigated by
Eskom and culminated in a Supplier Discipline Process
(“SDP”) being instituted against Canyon in November 2024.
The
decision was made by the Supplier Review Committee (“SRC”)
after the grounds for the disciplinary action were provided
to the
applicant, who was given an opportunity to make written
representations, which were received and considered.
[3]
On 11 March 2025, the outcome of the SDP
was communicated to the applicant in a letter from Eskom (“the
Decision”).
[4]
In terms of the decision, Eskom had
resolved to:
a.
Restrict the applicant from doing business
with Eskom for a period of five years; and
b.
Refer the applicant and its director, Ms.
Mabye (the “second applicant”), to the National Treasury
to be included in
the List of Restricted Suppliers on the National
database.
[5]
Currently, about one year later, the
applicants have launched an urgent application,
inter
alia
, seeking an interim order that
pending the final determination of the review application under case
number: 030307-2026, Eskom
and the Chairperson of the SRC are ordered
and directed to immediately unblock and reinstate the applicants
vendor number: 11090319
and vendor profile on all procurement,
financial and related systems operated or controlled by Eskom.
[6]
Effectively, the applicants want the court
to suspend the administrative decision made under the Promotion of
Administrative Justice
Act (“PAJA”) pending review. In
the interim, the applicant wants to be placed in a position as if the
decision had
never been taken.
[7]
The urgency of the matter was opposed and
was fully argued before this court.
[8]
On behalf of the applicants, it was argued
that Canyon has acted at all times with diligence, restraint, and
good faith during the
period from August 2025 until January 2026, and
that the applicant made sustained and
bona
fide
efforts to resolve this matter
without resorting to litigation, in an attempt to avoid unnecessary
court proceedings and further
prejudice to all parties.
[9]
A chronology of events was provided by both
parties to this application. In what follows, a short synopsis of the
events that have
taken place leading up to the Decision and this
urgent application is provided:
a.
On 25 February 2025, the SRC met and
considered the applicants’ disciplinary matter and resolved to
restrict the applicant
from doing business with Eskom.
b.
On 11 March 2025, the applicant was
provided with the decision and informed that it may request reasons
in a manner and within the
time periods provided for in PAJA.
c.
On 17 March 2025, the applicant delivered a
request for reasons for the Decision.
d.
On 27 March 2025, the applicant wrote to
Eskom advising it of its intention to seek external redress through
PAJA.
e.
On 4 April 2025, the applicant demanded
that Eskom unblock its vendor number and that it declares the
disciplinary process to be
null and void.
f.
On 16 April 2025, Eskom delivered reasons
for the decision and further stated that there is no internal review
or appeal process
available in respect of the supplier discipline
process.
g.
During the period from May to July 2025,
the applicant alleges it attempted to engage with Eskom through
personal visits and representations.
This is denied by Eskom
h.
On 10 August 2025, the applicant wrote to
Eskom and made further representations. It pleaded for leniency and
reconsideration of
the Decision. Further representations were made ex
post facto the Decision.
i.
On 25 August 2025 and 26 August 2025, the
applicant addressed emails to Eskom regarding the outcome of the
further representations.
j.
On 28 August 2025, Eskom sent an email to
the applicant advising that its case had been duly adjudicated as per
the decision sent
on 11 March 2025. It has been further confirmed
that there is no appeal mechanism in Eskom’s supply
disciplinary process.
Notwithstanding this, they would request
further guidance from the SRC.
k.
During September 2025, various emails were
sent by the applicant to Eskom requesting an update on the further
representations and
requested work. A request was made for feedback
on the “guidance” to be sought from the SRC. A threat was
made to utilize
an interdict to induce a response from Eskom
pertaining to the further representations
l.
In October 2025, the applicant sent further
emails, threatening to institute an urgent application during this
month.
m.
On 7 October 2025, Eskom advised the
applicant that its email of 28 August 2025 is still the official
position regarding the applicant's
case.
n.
On 22 October 2025, the applicant’s
attorney sent a letter of demand to Eskom wherein the applicant
demanded that the applicant’s
vendor number be unblocked; for
confirmation that they have exhausted all available remedies prior to
approaching a court; requested
a response by 27 October 2025, failing
which the applicant would approach the court on an urgent basis for
relief.
o.
On 5 November 2025, Eskom acknowledged
receipt of the letter of demand dated 21 October 2025. Nothing
further was stated.
p.
For the period from 22 October to 6 January
2026, two months went by without any further action from the
applicant.
q.
On 6 January 2025, a further letter
referred to as a final letter of demand was sent by the applicant’s
attorneys to Eskom,
repeating its demands.
r.
On 9 January 2026, Eskom acknowledged
receipt of the letter of demand and advised that the official
handling the matter was out
of the office, and the latter would be
brought to her attention upon her return on 19 January 2026.
s.
From 10 January 2026 to 20 January 2026,
nothing further transpired.
t.
On 27 January 2026, email correspondence
was sent from the applicant's attorney to Eskom, reiterating previous
demands made and
again making threats of the institution of urgent
legal proceedings.
u.
On 27 January 2026, Eskom addressed a
letter to the applicant, restating that there was no internal right
of appeal available to
the suppliers.
v.
On 3 February 2026, the applicant issued an
urgent application against Eskom but attached a wrong founding
affidavit. On 12 February
2026, the applicants' attorneys served the
corrected papers in the urgent application.
w.
On 17 February 2026, this matter was
initially enrolled on the urgent court roll but subsequently removed.
The same happened on
the 3rd of March 2026.
x.
On 17 March 2026, the matter was enrolled
on the urgent court roll before this court
.
[10]
On behalf of the applicants, it was argued
that the above chronology demonstrates that Canyon and the second
applicant did not create
their own urgency. On the contrary, they
exercised patience and restraint for months while Eskom delayed
unreasonably, failed to
make decisions, and allowed severe prejudice
to accumulate.
[11]
It
was argued that this matter is inherently urgent due to the timing of
the excuses and the broader public-sector procurement cycle.
The
months of January to March constitute the critical window for
advertising, evaluation, and award of tenders for the 2026/2027
financial year. As such, Canyon would not obtain substantial relief
at a hearing in due course. The court was referred to the decision
in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
[1]
where it was held that a delay in instituting proceedings is not on
its own a ground for refusing to regard the matter as urgent.
The
court held that “
the
important issue is whether, despite the delay, the applicant can or
cannot be afforded substantial redress at the hearing in
due course.
A delay might be an indication that the matter is not as urgent as
the applicant would want the court to believe. On
the other hand, a
delay may have been caused by the fact that the applicant was
attempting to settle the matter or collect more
effects with regard
thereto.”
[12]
Applicant argued that the ongoing unlawful
blockage of Canyon’s vendor profile prevents it from
participating in all procurement
opportunities during this decisive
period. Even if the applicants are ultimately successful in the
pending review application,
such success would be hollow. By then,
the first applicant would have lost an entire year of business and
would likely have ceased
to exist.
[13]
Eskom’s case on urgency was that the
applicants' urgency was self-created, and the chronology of events
indicated exactly
that. There were lengthy periods of unexplained
delay. Canyon’s explanation is neither adequate nor covers the
full period
from when it realized that urgent relief should be
pursued.
[14]
The
court was referred to the matter of
White
River Marketing (Pty) Ltd and Another v Rothwell and Another
2022
[2]
where the court in paragraph
[6] held that
to
establish urgency an applicant must show that “
in
the face of a threat to it or its interest it had acted with the
necessary haste to mitigate the effects of that threat”.
It
was argued that Canyon did not do so. The court was further referred
to the matter of
Roets
N.O. and Another v SB Guarantee Company (RF) (Pty) Ltd and Other
[3]
,
where
it was held that an applicant should act promptly to pursue an urgent
application, and if there is a delay to file an urgent
application,
such delay should be fully explained.
[15]
The starting point in considering whether a
matter is urgent is to have regard to Rule 12(a) and (b). Subsection
(b) provides that
the applicant must set forth in an affidavit
explicitly the circumstances that render the matter urgent and the
reasons why the
applicant claims it would not be afforded substantial
redress in due course.
[16]
This
is not the only consideration. When an applicant creates its own
urgency and fails to adequately explain the delay, the matter
would
not be entertained in the urgent court. (see:
ENX
Group Limited v Brain Leonard Spilkin
[4]
and cases referred to in this judgment, see also
Pacinamix
(Pty) Ltd v Patina (Pty) Ltd
[5]
)
.
[17]
An applicant cannot create urgency by
simply waiting until the normal rules governing the launch of
applications can no longer assist
the applicant.
[18]
This
does not mean that an applicant cannot explore settlement
possibilities and try to seek compliance from a respondent with its
demands before lodging an urgent application. This avenue could be
explored, particularly to save legal costs. (see:
Nelson
Mandela Metropolitan Municipality v Greyvenouw
CC
[6]
).
[19]
At some stage, however, an applicant must
realize that if a satisfactory outcome is not forthcoming, it should
approach a court
for relief. The attempt to obtain compliance
cannot be pursued for lengthy periods, with a deadline looming, when
substantial
redress can no longer be obtained, unless an order is
urgently obtained at the last moment.
[20]
This matter pertains to an administrative
decision to block Canyon's vendor number. It could no longer compete
for tenders from
Eskom and other government institutions. Canyon
should have been aware that the only remedy available to it was to
seek a
review of the decision. The applicant was on more than one
occasion informed that no appeal or review was available and that the
decision would stand. Despite this, the Canyon continued sending
emails, pleading for reconsideration of the Decision. The applicant
and his attorney must have realized that it would be irregular for
Eskom to overturn its own administrative decision. As no internal
appeal or review was available, the decision remains in force until
set aside by a competent court.
[21]
Canyon strongly relied on Eskom's letter
stating that no appeal mechanism was available in Eskom’s
supplier disciplinary process,
but, notwithstanding this, Eskom
indicated that it would request further guidance from the SRC. The
result of this undertaking
was never provided to Canyon. Canyon
should not have waited indefinitely for a reply. Particularly in
circumstances where no internal
review or appeal was available. This
fact was related to Canyon multiple times.
[22]
For almost a year, Canyon decided not to
approach a court, despite indicating in September and October 2025
that it would. Final
letters of demand were sent, but it was only in
February 2026 that Canyon filed an urgent application, attaching the
wrong founding
affidavit. Only on 12 February 2026 was the correct
founding affidavit attached to the application, in which the notice
of motion
referred to a hearing date of 3 March 2026. This led to the
filing of an answering affidavit. Insufficient time was provided for
a replying affidavit, which meant that the matter was removed from
the roll and the notice of motion was amended to include the
date of
17 March 2026. The matter was then set down before this court. The
setting down of an urgent application from one week
to the next after
it was filed is problematic. In this case, it was done on at least
three occasions, without a proper explanation
provided under oath.
[23]
In my view, self-created urgency is a form
of abuse of the urgent court's processes. If the applicants had
started the application
in the ordinary course, shortly after the
reasons for the decision were provided in April 2025, it would not
have been necessary
to treat the matter as urgent at all, let alone
to file an application only two weeks before the deadline for new
tenders.
[24]
For this reason, this court found that the
urgency upon which the applicants relied was self-created and the
matter was struck off
the roll. Applicants were ordered to pay the
application costs on scale C. The order should have stated that the
cost order is
made against the applicants, jointly and severally,
with the one paying the other to be absolved. To that extent, I will
correct
my order.
[25]
The court also reserved the question to
decide the reserved costs for the hearing on 3 March 2026. The
removal of the matter was
underpinned by the applicants' wrong routes
taken from the outset, in filing this application in the urgent
court. The initial
urgent application was set down for 6 February
2026, citing unrealistic timelines for filing an answering affidavit.
A wrong founding
affidavit was attached.
[26]
This affidavit was simply replaced by
another affidavit without seeking condonation. The timelines set in
the notice of motion were
amended. When the answering affidavit was
filed, it provided an answer to the wrong and corrected founding
affidavit. Ultimately,
the applicants could not timeously file a
replying affidavit, and on the date of the fresh set-down, 3 March
2026, the matter was
removed from the roll. In my view, none of this
would have transpired if realistic timelines were set from the
outset. Accordingly,
in my view, the applicants are responsible for
the wasted costs occasioned by the removal of the matter from the
urgent roll of
3 March 2026.
[27]
The following order is made:
a.
The matter is struck from the urgent court
roll as the urgency was self-created.
b.
The applicants to pay the costs of this
urgent application, including the reserved cost on scale C, jointly
and severally, the one
paying the other to be absolved.
R. STRYDOM
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
JOHANNESBURG
Heard
on:
17, 18 & 20 March 2026
Delivered
on:
25 March 2026
Appearances:
For the
Applicants:
Adv. D.B. Melaphi
Adv. B. Malinga
Instructed
by:
Pepu Attorneys
For the 1
st
and 2
nd
Respondent: Adv. G. Singh
Instructed
by:
Mchunu Attorneys
[1]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
[2012]
JOL 28244
(GSJ) at paragraphs [8] and [9].
[2]
White
River Marketing (Pty) Ltd and Another v Rothwell and Another
2022
JDR 1186 (GJ).
[3]
Roets
N.O. and Another v SB Guarantee Company (RF) (Pty) Ltd and Other
[2022]
JOL 55628
(GJ) at para 26,
[4]
ENX
Group Limited v Brain Leonard Spilkin
(unreported,
ECG, case no: 2296/2022).
[5]
Pacinamix
(Pty) Ltd v Patina (Pty) Ltd
(unreported,
GJ case no 2022/045789 dated 25 November 2022) at paragraphs
[9]-[10]
[6]
Nelson
Mandela Metropolitan Municipality v Greyvenouw
CC
2004 (2) SA 81
(SE) at paragraph 34.