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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
TEDCOR (PTY) LTD
and
MAHIKENG LOCAL MUNICIPALITY
Coram: Reddy J
Heard: 27 March 2026
Judgment reserved : 27 March 2026
CASE NO: 1161/2017
Applicant
Respondent
This judgment was electronically circulated to the parties' legal
representatives by e-mail and released on SAFLII. The date and time of hand
down are deemed to be 10 April 2026 at 12h00.
Summary
Leave to appeal - s 17 of the Superior Courts Act 10 of 2013 governs
applications for leave to appeal againstjudgments of the High Court and raises
the threshold above that applicable under the former Supreme Court Act 59 of
1959. Under s l 7(l)(a)(i) , leave may only be granted where the appeal would
have a reasonable prospect of success: the word "would" requires a measure
2
of certainty that another court will differ, not merely that it might. Under
s 17(1)(a)(ii), leave may also be granted where there is a compelling reason
why the appeal should be heard, including an important question of law or a
matter of public importance. However , the merits remain relevant even on that
enqmry.
Tedcor claimed R 2 312 393.40 from the Municipa lity for waste collection
services rendered during September to November 2015 under a month-to
month arrangement. The Municipality did not pay and denied that any valid
contract existed. The trial court dismissed the claim. Tedcor sought leave to
appeal to the Supreme Court of Appeal, alternatively, the Full Court.
The application was dismissed because the evidence Tedcor presented to the
trial court was fatally deficient on the most basic elements of its contractual
cause of action, and an appellate court operating on the same record could not
reach a different conclusion. Tedcor 's sole witness could not identify who
concluded the arrangement on the Municipality 's side, could not prove the
agreed monthly fee of R 770 797 .80, and herself conceded that there was no
written contract and that payments without one constituted irregular
expenditure under the MFMA. A purported appointment letter was never
discovered or produced. The pleaded cause of action further rested on the
unsupported premise that Tedcor held a written contract with the Municipality.
The Oudekraal argument failed for want of evidence of any identifiable
administrative act by an authorised official. The CFO's alleged
acknowledgement of debt was pleaded but never proved at trial. The s 34
constitutional ground was not sustained . No compelling reason under
s l 7(1)(a)(ii) was established, as the legal principles invoked presupposed a
factual foundation absent from the record.
3
An appellate court would operate on the same deficient record and could not
reach a different conclusion.
ORDER
1. The application for leave to appeal is dismissed with costs, including
The costs of two counsel were so employed.
JUDGMENT
REDDY J
Introduction
[l] This is an opposed application by Tedcor (Pty) Ltd, the applicant for
leave to appeal to the Supreme Court of Appeal, or to the Full Court of the
North West Division, against the entire judgment and order of this Court
delivered on 30 October 2025. In that judgment, the applicant's claim for
payment of R2 312 393.40 was dismissed with costs. The application is
brought pursuant to s 17 of the Superior Courts Act 10 of 2013. The
respondent opposes the application. For ease of reading, the parties are
referred to as they were cited at trial, namely the plaintiff (Tedcor) and the
defendant (the Municipality).
4
[2] Tedcor claimed payment ofR 2 312 393.40 for fees for domestic waste
collection services allegedly rendered to the Municipality in September,
October and November 2015, under what it described as a "continued
agreement." The Municipality denied the claim in its entirety.
Background facts
[3] Prior to August 2012, Tedcor provided domestic waste collection
services to the Municipality in terms of an arrangement flowing from a service
delivery agreement between the Department of Environmental Affairs and
Tourism (DEAAT) and a company known as Shisaka Development Services
(Pty) Ltd (Shisaka). Shisaka, in turn, sub-contracted Tedcor to provide the
physical waste collection service. Tedcor was not a party to the
DEAAT/Shisaka written contract. That contract expired by effluxion of time
in August 2012.
[4] From September 2012, the Municipality continued to use Tedcor on
what all parties accepted was a month-to-month basis, and made monthly
payments to Tedcor through to August 2015. On 19 October 2015, the acting
municipal manager Mr I.T. Mokwena addressed a letter to Tedcor terminating
its services as of 30 November 2015. That letter acknowledged that Tedcor
had been retained to continue delivering domestic waste services "on a month
to month without a substantive contract or service level agreement" and that
the arrangement "may constitute irregular expenditure within the
contemplation of the MFMA."
[5] Tedcor continued providing services through November 2015, but the
Municipality did not pay Tedcor's fees for September, October, and
November 2015, amounting to R 2,312,393.40. Tedcor's sole witness at trial
was Ms. Verona Mirenia Petersen, a director of Tedcor. The Municipality in
5
tum called Mr Shomoleile Benjamin Pelele, its legal manager. After hearing
the evidence and considering the submissions, this Court dismissed Tedcor's
claim with costs.
Grounds of Appeal
[6] Tedcor's amended notice of application for leave to appeal sets out
eleven grounds. These may be classified into four categories. First, Tedcor
contends that this Court erred in typifying the cause of action as one based on
a written contract to which Tedcor was not a party, rather than on the month
to-month arrangement pleaded in paragraphs 5 to 9 of the particulars of claim.
Second, Tedcor claims that the Court disregarded common cause facts and the
admissions made in the Municipality's plea, including the admissions of
paragraphs 6.1, 6.3 and 8 of the particulars of claim. Third, Tedcor maintains
that the Court failed to consider the full body of legal submissions advanced
by Tedcor, particularly those relating to the Oudekraal principle, the supply
chain management policy, and the preservation of rights already accrued.
Fourth, Tedcor contends that the description of the "continued agreement" as
legalistic acrobatics was erroneous.
Tedcor's contentions
[7] Advocate Mphahlane made the following submissions. First, this Court
erred by treating paragraphs 3 and 4 of the particulars of claim as the
foundation of the cause of action. Advocate Mphahlane asserts that those
paragraphs were merely contextual background. The operative pleading was
paragraphs 5 to 9, which unambiguously pleaded the month-to-month
arrangement and the unpaid invoices for the three months in question.
Moreover, Advocate Mphahlane contends that the Municipality 's own plea
admitted that Tedcor rendered services from August 2012 to 30 November
2015, that either party was entitled to terminate on a month's notice, and that
6
the Mokwena termination letter was sent. Advocate Mphahlane argues that the
Municipality's admissions undoubtedly established the factual substratum of
the claim.
[8] Second, Advocate Mphahlane alleges that the classification of the term
"continued agreement" as legalistic acrobatics was incorrect. The
Municipality's own plea employed the term "contract/agreement" to describe
the arrangement, and Pelele himself confirmed in cross-examinat ion that it
was correct to say the municipality "retained" Tedcor and that it was logical
to do so. Therefore, on this score, Advocate Mphahlane contends that this
Court's critique was misplaced.
[9] Third, Advocate Mphahlane asserts that this Court failed to engage with
Tedcor's submissions on the Oudekraal principle. According, to Advocate
Mphahlane, these submissions are apposite, since the Municipality's monthly
appointments of Tedcor constituted administrative acts that were never
reviewed or set aside. It stands to reason, so Advocate Mphahlane concludes
that those acts must be treated as valid until a court sets them aside.
[l O] To underscore these contentions, Advocate Mphahlane placed reliance
on Oudekraal Estates (Pty) Ltdv City of Cape Town' MECfor Health, Eastern
Cape v Kirland Investments (Pty) Ltd, and Kwa Sani Municipality v
Underberg/Himeville Community Watch Association 2. Besides, Advocate
Mphahlane asserts that the Municipality's own Supply Chain Management
Policy, more pertinently paragraph 12.17, empowered the municipal manager
2004 (6) SA 222 (SCA).
(2015] ZASCA 24.
7
to appoint service providers directly in emergency circumstances, including
where the interruption of essential services was at risk.
[11] Fourth, Advocate Mphahlane argues that the CFO's written
acknowledgement of the debt in August 2016 constituted an independent basis
for the award sought by Tedcor. Further, Advocate Mphahlane posits that,
notwithstanding any question of contractual validity, Tedcor was entitled to
an award that preserved rights already accrued in respect of invoices rendered
for work done before the date of termination , on the authority of Kwa Sani
Municipality.
The Municipality's Submissions
[12] Advocate Muza's divergent views can be summarised as follows. First,
the judgment was correct in all material respects. Advocate Muza underscores
that the particulars of claim in paragraphs 3 and 4 pleaded a written contract
between Tedcor and the Municipality. Advocate Muza maintains that it was
common cause that no such contract existed. Notably, Advocate Muza
contends that Tedcor was not a party to any written contract with the
Municipality. Of note, Advocate Muza draws attention to the pleadings, where
the Municipality denied paragraph 3, and to the evidence at trial, which
confirmed that the pleaded fact was incorrect. In those circumstances, the
Court's criticism of the pleadings was warranted.
[13] Second Advocate Muza advances that Tedcor's sole witness, Petersen,
was unable to establish the material elements of the claimed contractual cause
of action. Crucially, Advocate Muza contends that Petersen could not identify
the municipal official or officials who concluded the month-to-month
arrangement with Tedcor, or whether any such person had authority to bind
the Municipality. Advocate Muza emphasizes that Petersen was unable to
8
point to any document or agreement establishing the monthly fee of R 770
797.80 as an agreed term. Importantly, Advocate Muza accentuates that
Petersen acknowledged in cross-examination that there was no written
contract, namely the appointment letter upon which Petersen sought to rely,
which was not among the discovered documents and was not produced to the
Court, constituting a lacuna in Tedcor's case.
[14] Third, Advocate Muza postulated that the Oudekraal principle could
not assist Tedcor. To this end, Advocate Muza continued that the principle
presupposes the existence of an identifiable administrative act, a decision by
an authorised official which may be treated as valid until set aside. Simply
put, Advocate Muza's argument ran that Tedcor led no evidence identifying
any such act. Furthermore, the Municipality never pleaded the unlawfulness
of the arrangement as a defence. Still, the absence of a valid contract was
squarely in issue from the outset by virtue of the denial of paragraphs 3, 4, 6.2,
7, 9 and 10 of the particulars of claim.
[15] Fourth, Advocate Muza submits that the CFO's alleged
acknowledgement of debt was pleaded but never proved at trial. Petersen did
not give evidence about August 2016. It was accordingly not tested in cross
examination. Accordingly, Advocate Muza maintains that a cause of action
pleaded and denied but not advanced or proved at trial cannot constitute a
ground for leave to appeal.
[16] Fifth, Advocate Muza indicated at the close of Tedcor's case that he
"would have loved to apply for absolution from the instance," but elected not
to do so purely for reasons of time. This, so the argument of Advocate Muza
ran, is a frank acknowledgement from the bar that Tedcor had not made out
9
even a prima facie case. Advocate Muza submitted that no court, applying
orthodox principles of contract law, could have found for Tedcor on the
evidence led.
The Test for Leave to Appeal
[17] Section 17(1)(a) of the Superior Courts Act provides that leave to
appeal may be granted only if the judge is of the opinion that:
"(i) the appeal would have a reasonable prospect of success; or (ii) there
is some other compelling reason why the appeal should be heard,
including conflictingjudgments on the matter under consideration."
[ 18] The threshold for granting leave to appeal against a judgment of a High
Court judgment has been raised under the Superior Courts Act. The former
test was whether there was a reasonable prospect that another court might
come to a different conclusion. Under the Superior Courts Act, the word
"would" connotes a measure of certainty that another court will differ from
the court whose judgment is sought to be appealed against.
[ 19] What the test for reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of appeal
could reasonably conclude differently from that of the trial court. To succeed,
Tedcor must convince this Court on proper grounds that it has prospects of
success on appeal, and those prospects must not be remote but must have a
realistic chance of succeeding3.
3 MECfor Health, North West Provinc e v L.S.M obo O.M[2024] ZANWHC 14 para 7;
Smith v S 2012 (1) SACR 567 (SCA) para 7; Caratco (Pty) Ltd v Independent Advisory
(Pty) Ltd 2020 (5) SA 35 (SCA) para 2.
[20] The success of an application for leave to appeal must therefore be
related to the outcome that another court would make a different order, and
not merely to an argument that finds fault with the reasoning but would not
change the result.4
[21] Even where the court is not persuaded that there are reasonable
prospects of success, it must still inquire whether there is "some other
compelling reason" for the appeal to be heard. A compelling reason would
include an important question of law or a discrete issue of public importance
that will affect future disputes. However, the merits remain vitally important
and are often decisive even on this alternative enquiry.5
Discussion
[22] The application falls to be considered against the backdrop of what was
actually pleaded, what was led in evidence, and what the trial court found. I
now address each of the class grounds in tum.
The issue of the pleadings
[23] Tedcor's primary complaint is that this Court mischaracterised the
cause of action by treating paragraphs 3 and 4 of the particulars of claim
which referred to a written contract in terms of which Tedcor rendered
services up to August 2012 as the foundation of the claim, rather than the
month-to-month arrangement pleaded in paragraphs 5 to 9. The complaint is
meritless.
4 Western Johannesburg Rent Board v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A)
at 354.
5 Caratco (Pty)Ltd v Independent Advisory (Pty)Ltd 2020 [5]SA 35 (SCA)
para 2.
11
[24] I amplify this in the following way. It is correct that the operative cause
of action was the post 2012 month-to-month arrangement described in
paragraph 5 as the "continued agreement." However, paragraph 5 defines that
arrangement as one under which Tedcor rendered services "on the same basis
as set out in paragraph 3 above." Critically, paragraph 3, in tum, describes the
services rendered in terms of a written contract with the Municipality. It was
common cause that no such written contract existed between Tedcor and the
Municipality. Tedcor was sub-contracted by Shisaka; the written contract was
between Shisaka and DEAAT; the Municipality was not a party to it. The
foundational premise of paragraph 3 was, as this Court found in the judgment,
factually incorrect. Tedcor was not a party to that written contract and was
implicitly aware of this. It follows that the conclusion reached was correct.
[25] More fundamentally , even accepting the most generous reading of the
particulars, Tedcor still had to prove, at trial, the material elements of its cause
of action as pleaded. It is the state of the evidence and not the pleading dispute
alone that is dispositive of the present application.
The evidence is ex facie the record.
[26] In the absence of being repetitive, Tedcor 's claim was founded on a
contractual cause of action. That being so, the material elements that Tedcor
was required to prove included:
(a) the conclusion of the agreement, the parties to the agreement, the date and
place of conclusion, and who represented the Municipality;
(b) the terms of the agreement, including the agreed price; and
12
(c) Tedcor's performance and the Municipality's breach. Rule 18(6) of the
Uniform Rules of Court required Tedcor to state whether the contract was
written or oral, when, where and by whom it was concluded. The evidence fell
gravely short of meeting these requirements.
[27] On the question of who concluded the arrangement on behalf of the
Municipality, Petersen was at large to provide any answer of substance. When
challenged in cross-examination about who represented the Municipality
when Tedcor was retained to continue rendering services from September
2012, she responded, "There were a lot of changes in the municipality at the
time." This statement, in broad strokes, is telling for several reasons. First, no
name was given. Second, no designation was identified. Third, no date or
place of conclusion was stated. Petersen's response provided no details on the
most basic element of a contractual cause of action against a juristic person.
[28] Pertinently on the question of the agreed price pleaded as a material
express, alternatively implied, further alternatively tacit term, the position was
equally unsatisfactory. When Advocate Muza directly invited Petersen to
point to any written contract or document containing the R 770 797.80 per
month figure, the transcript records no answer. The entire quantum of the
claim rested on a price term that was never proved.
[29] Tedcor's difficulties were further compounded by what emerged from
Petersen during cross-examination. When presented with the Mokwena
termination letter's statement that Tedcor had been retained without a written
contract or service level agreement, Petersen agreed there was no written
contract . When asked whether payments without a written contract would
constitute irregular expenditure under the MFMA, she agreed. Petersen
13
thereby conceded the two main pillars of the Municipality's defence. This
concession, emanating from Petersen, was fatal to the claim.
[30] A further difficulty arose from Petersen's attempt during her evidence
to rely on a "continuation appointment letter" from the Municipality as the
document formalising Tedcor's retention. This document was not part of
Tedcor's discovered documents and was not admitted into evidence following
the objection by Advocate Muza at the commencement of proceedings. When
challenged in cross-examination to produce this letter, Petersen confirmed that
it was not in the documents before the Court. The case Tedcor sought to
present at trial was that the retention was formalised by a written appointment
letter from the Municipality , which was both materially different from the case
pleaded and gravely shy of supporting evidence.
[31] It is within this context that the assessment of Petersen's evidence in the
first judgment, which found that the findings are supported by the record and
are not shown to be clearly wrong, as her evidence moved from a written
contract to a continued agreement to an appointment letter to letters received
by her bookkeeper. The result was that Petersen's evidence failed to explicate
the critical specifics of a cause of action in contract that is vindicated by the
record. An appellate court applying the principles enunciated in R v
Dhlumayo6 and S v Hadebe 7 would be slow to interfere with those findings.
Nothing in the record demonstrates them to be clearly wrong.
6 1948 (2) SA 677 (A).
7 1998 (1) SACR422 (SCA).
14
The Oudekraal point
[32] Tedcor invokes the principle that an administrative act, until reviewed
and set aside, must be treated as valid and capable of having legal effect.8 This
submission is meritless.
[33] The Oudekraal principle presupposes the existence of an identifiable
administrative act, a decision by an authorised official, taken in a public
capacity. Tedcor led no evidence identifying any such act, whether by name,
date, designation or authority. It follows logically that one cannot invoke the
protection of the Oudekraal principle in respect of an administrative act that
was never placed before the Court. The absence of evidence on this point is
not cured by legal argument. Furthermore, the principle is inapplicable to the
pleaded facts. The Municipality did not plead unlawfulness as a defence; the
absence of a valid contract was squarely in issue from the outset. In those
circumstances, Oudekraal simply does not arise. There is no administrative
act whose validity requires preservation.
The supply chain management policy
[34] The supply chain management policy argument is equally unavailable
exfacie the record. Tedcor refers to paragraph 12.17(3) of the Municipality's
Supply Chain Management Policy, which permits direct appointment in
emergency circumstances. The evidence at trial did not establish that the
municipal manager purported to invoke that provision, or indeed that any
identified official made any formal decision to retain Tedcor at all. The
8 Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA); MEC for
Health, Eastern Cape v Kirland Investments (Pty) Ltd2014 (3) SA 481 (CC) paras 102-
103.
15
argument rests on an assumption about a decision that was never supported by
evidence.
The F amate judgment
[3 5] The Municipality relied on the decision of this Division in Mahikeng
Local Municipality v Famate Infocast {Pty) Limited as authority for the
proposition that no court could reach a different conclusion from that in the
judgment. In the judgment, at paragraph [21], this Court identified key
differences between Famate and the present case. First, in Famate, the
municipality initiated and advertised a tender to which Famate responded and
participated; in the present case, there was no tender process. Second, in
Famate, the company was awarded the tender, as evidenced by a letter of
appointment; in the present case, no appointment letter was submitted to the
Court. Third, in Famate, both parties negotiated the terms of a written service
level agreement; in the present case, no such agreement was negotiated or
concluded. More fundamentally, Famate presupposed a factual matrix in
which both a tender process and a written appointment had occurred. The legal
proposition the Municipality invokes, that an unlawful contract bars recovery,
does not arise in the present case because T edcor failed at the prior stage to
prove that any contract, lawful or otherwise, was concluded. Famate therefore
provides no basis for granting leave.
The CFO's alleged acknowledgement of debt
[36] In paragraph 10 of the particulars of claim, it is pleaded that on 16
August 2016 at Mahikeng, the Municipality, represented by its CFO, Mr.
Terrance Mathe, agreed that the outstanding amount ofR 2 312 393.40 would
be paid in full by 30 November 2016. The Municipality denied this. Petersen
provided no evidence regarding that meeting during examination-in-chief or
re-examination. The allegation was not put to Pelele in cross-examination. It
16
was never proved. A pleaded cause of action that is denied and then abandoned
at trial provides no basis for leave to appeal. This ground is also meritless.
Section 34 of the Constitution
[37] Tedcor contends that this Court's failure to properly examme the
submissions, arguments and evidence adduced by Tedcor denied it a fair
hearing guaranteed by section 34 of the Constitution. It is submitted that the
judgment disposed of the claim without engaging with the substantial body of
legal argument advanced in Tedcor's heads of argument, which extended to
seventy-three (73) paragraphs and cited several authorities.
[38] The central legal arguments in those heads, namely the Oudekraal
principle, the supply chain management policy, and the accrued rights
argument, are drawn from Kwa Sani Municipality. Each was addressed. The
Oudekraal argument was considered and rejected for want of any identifiable
administrative act. The supply chain management policy argument was
rejected for want of evidence that an authorised official invoked the relevant
provision. The accrued rights argument failed because no valid retention was
proved. Section 34 of the Constitution requires engagement with central
contentions; it does not demand exhaustive treatment of every subsidiary
argument. The judgment engaged with Tedcor' score submissions as recorded
at paragraph [ 19] of the judgment under appeal and met that standard. The
constitutional ground provides no independent basis for granting leave.
Conclusion
[39] An appellate court would be bound to apply the principles in Dhlumayo
and Hadebe and would be slow to interfere with the trial court's factual and
credibility findings unless they were clearly wrong. Nothing in this record
discloses any such error. The record reflects precisely what the trial court
17
found, namely, that Petersen was unable to identify who concluded the
arrangement on the Municipality's side, unable to prove the agreed price, and
that she herself conceded the absence of a written contract and the irregular
nature of the payments . No different finding on those facts was available to
the trial court. An appellate court operating on the same deficient record would
not reach a different conclusion. The requirements of s 17(l)(a)(i) of the
Superior Courts Act are not met.
[ 40] The argument that there is a compelling reason to hear the appeal suffers
a similar fate. The legal principles on which Tedcor seeks to rely, namely the
Oudekraal principle, the MFMA, and the supply chain management
framework, presuppose a factual foundation that is absent from this record.
This case does not provide a suitable vehicle for developing those principles.
I am not persuaded that there is a compelling reason why the appeal should be
heard in terms of section l 7(l)(a)(ii) of the Superior Courts Act.
[ 41] It follows that the application for leave to appeal falls to be dismissed.
Costs
[ 42] The application has been dismissed. There is no basis to deviate from
the ordinary rule that costs follow the result. Having regard to the complexity
of the issues raised and the fact that two counsel appeared at the hearing of
this application, the costs of two counsel are warranted.
Order
[ 43] In the premises, I make the following order:
1. The application for leave to appeal is dismissed with costs, including
the costs of two counsel where so employed.
18
A REDDY
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
Counsel for the Applicant:
Attorney for Applicant:
Advocate T Mphahlane
Kevin Cross & Affiliates Attorneys, Knysna
C/O Van Rooyen Tlhapi Wessels Inc
Mahikeng
Counsel for the Respondent: Advocate C Muza
Attorney for the Respondent: Kgomo Attorneys Inc.
Mahikeng