IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A99/2025
In the matter between:
KUBWA KAZI CONSTRUCTION CC 1ST Appellant
LEBAKA CONSTRUCTION CC 2ND Appellant
KUBWA KAZI CONSTRUCTION AND LEBAKA 3RD Appellant
CONSTRUCTION JV
M. JACOB PHUNGULA 4TH Appellant
VERONICA Z. MABENA 5TH Appellant
JOY M. SEALE 6TH Appellant
And
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
(4) Date: 15 April 2026
Signature: _
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THE SPECIAL INVESTIGATING UNIT (“THE SIU”) 1ST Respondent
EKURHULENI METROPOLITAN MUNICIPALITY 2ND Respondent
CIVEC CIVIL ENGINEERING CONSULTANTS CC 3RD Respondent
(Interested Party)
MAHLOMOLA D KOMANE 4TH Respondent
(Interested Party)
THEMBELIHLE P MOGAPI 5TH Respondent
(Interested Party)
YOLISA MASHILWANE 6TH Respondent
(Interested Party)
JUDGMENT
NYATHI J (MNGQIBISA-THUSI J AND SWANEPOEL J CONCURRING)
A. INTRODUCTION
[1] This is an appeal in terms of s 8(7) of the Special Investigating Units and
Special Tribunals Act 74 of 1996 (“the SIU Act”) read with Rule 49 of the Uniform
Rules of Court, against the whole of the judgment and order of Naidoo J sitting
in the Special Tribunal, delivered on 14 January 2025.
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[2] The respondents did not appear at the hearing of the appeal, despite proper
notice having been served. They also filed no heads of argument. The matter
accordingly proceeded unopposed, and this Court determined the issues on the
basis of the record, the appellants’ heads of argument and oral submissions.
B. BACKGROUND
[3] The dispute arises from the Vosloorus Hospital Taxi Rank contract (Tender
PT 01 ‑2014), awarded to the first to third appellants, acting as a joint venture
(“the JV”).
[4] The SIU and the Municipality instituted action in the Special Tribunal
seeking repayment of R1 973 028.11, being the amount certified and paid under
Interim Payment Certificate 5 for materials (canopies) alleged to have been
fraudulently claimed as “materials on site”.
[5] The appellants defended the claim and raised a counterclaim for monies
allegedly owed to them under the Vosloorus contract and under the Bluegum
View contract.
[6] In a preliminary hearing, the Tribunal upheld:
i. the respondents’ jurisdictional plea,
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ii. the respondents’ prescription plea (in respect of the Bluegum View
counterclaim), and
iii. dismissed the appellants’ cause -of-action plea relating to the fifth
and sixth appellants.
The appeal lies against these rulings.
C. GROUNDS OF APPEAL
The appellants primarily argue that the Tribunal erred—
(a) in finding that a proper cause of action existed against the fifth and sixth
appellants, despite an absence of pleaded facts establishing knowledge of
fraud;
(b) in concluding that it lacked jurisdiction to entertain the appellants’
counterclaims, notwithstanding that the SIU and Municipality elected to proceed
in the Tribunal on the same indivisible contracts; and
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(c) in treating the counterclaims as prescribed when, in terms of the GCC1, the
right to retention payment arises only upon the issue (or deemed issue) of
completion certificates.
ISSUE 1: WHETHER THE RESPONDENTS PLEADED A CAUSE OF ACTION
AGAINST THE FIFTH AND SIXTH APPELLANTS
[7] The particulars of claim rely on fraudulent misrepresentation in relation to
invoice KK1339‑IN05. However, the pleading attributes the fraudulent conduct
expressly to the first to fourth appellants.
[8] While the respondents cited the fifth and sixth appellants as
members/directors of the JV entities, they did not plead knowledge, participation,
recklessness, or intent on their part. These elements are mandatory to sustain
liability under:
common‑law fraudulent misrepresentation, and
section 64 of the Close Corporations Act, which requires that a person be
“knowingly a party” to the fraudulent conduct. (See Larkin v Registrar of
1 In the context of South African construction law, GCC stands for the General Conditions of Contract for Construction
Works.
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Companies 1985 (3) SA 551 (A) and Philotex (Pty) Ltd v Snyman 1998 (2)
SA 138 (SCA).
[9] The Tribunal held that the mere fact of membership and signature of the JV
agreement “imputed” liability to the fifth and sixth appellants. With respect, this was
a misdirection. Liability in fraud cannot be imputed; it must be pleaded and proven.
The test is whether, assuming the facts pleaded are true, the pleading discloses a
cause of action. (McKenzie v Farmers’ Co-operative Meat Industries 1922 AD 16;
Trope v South African Reserve Bank 1992 (3) SA 208 (T) ; Fairoaks Investment
Holdings (Pty) Ltd v Oliver 2008 (4) SA 302 (SCA).)
[10] In the absence of pleaded facta probanda establishing knowledge or
participation, the particulars of claim lack essential averments. The Tribunal ought
to have upheld the special plea.
Finding on Issue 1:
The appeal succeeds. The claim against the fifth and sixth appellants does not
disclose a cause of action and ought to have been dismissed at the preliminary
stage.
ISSUE 2: JURISDICTION OF THE SPECIAL TRIBUNAL TO HEAR THE
COUNTERCLAIMS
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[11] The Tribunal found that it lacked jurisdiction because:
a. the SIU Act exists solely to recover losses of the State,
b. defendants are not entitled to assert counterclaims, and
c. the counterclaims relate to contractual disputes not forming part of the SIU’s
referral.
[12] This reasoning is flawed for several reasons:
(a) Rule 13(1) of the Tribunal Rules expressly permits a plea with or without a
claim in reconvention.
(b) The SIU elected the forum. Once the SIU chose to litigate in the Tribunal on
an indivisible contract, principles of fairness, equity, and avoidance of
multiplicity of proceedings require that the contractor be permitted to raise
its corresponding claims b efore the same forum. If a party makes an
election, once made, he cannot first take one road and then turn back and
take another. This much was made clear by the SCA in Chamber of Mines
v National Union of Mineworkers 1987 (1) SA. 668 (A) at 690E-691B. and
Administrator, Orange Free State v Mokopanele 1990 (3) SA 780 (A).
(c) The counterclaims stem from the identical contracts covered under the
Proclamation and the SIU investigation mandate.
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(d) Nothing in the SIU Act excludes reciprocity. The Tribunal is a civil forum;
counterclaims are inherently civil in nature. A m ultiplicity of proceedings
should be avoided. In Makhanya v University of Zululand 2010 (1) SA 62
(SCA) the SCA emphasised that a forum with jurisdiction must hear the
matter.
[13] The Tribunal therefore erred in declining jurisdiction.
Finding on Issue 2:
The appeal succeeds. The Special Tribunal does have jurisdiction to entertain the
appellants’ counterclaims.
ISSUE 3: PRESCRIPTION
[14] The counterclaims relate to retention monies under the GCC. Such
amounts become due only upon the issue of a Certificate of Completion
and/or Final Approval Certificate, neither of which were issued. If the
employer wrongfully withholds a certificate, the doctrine of fictional fulfilment
applies. The leading case in this area, MacDuff & Co Ltd (in Liquidation)
v Johannesburg Consolidated Investment Co Ltd (1924 AD 573)
encapsulates the principle: a party that deliberately obstructs the fulfilment
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of a condition is treated as if the condition has been met, thus binding it to
its contractual obligations.2
[15] Where a certificate is wrongfully withheld, the doctrine of fictional fulfilment
applies, and prescription begins only when the obligation becomes due.
[16] The Tribunal erred in treating the counterclaims as prescribed.
Finding on Issue 3:
The appeal succeeds. The counterclaims have not prescribed.
CONCLUSION AND ORDER
[17] For the above reasons, the following order is made:
Order
1. The appeal is upheld with costs.
2. The ruling of the Special Tribunal dated 14 January 2025 is set aside and replaced
with the following:
2 Excerpt from Adv. Christi Hattingh – LinkedIn 16 February 2025.
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2.1 The special plea that the particulars of claim fail to disclose a cause of
action against the fifth and sixth appellants is upheld.
2.2 The plaintiff may amend the particulars of claim within 10 (ten) days hereof.
2.3 The respondents’ jurisdictional plea is dismissed.
2.3 The respondents’ prescription plea is dismissed.
3. The matter is remitted to the Special Tribunal for further proceedings on the merits
before a different Tribunal member.
4. The respondents shall bear the costs of this appeal jointly and severally, the one
or more paying the others to be absolved, on a party and party scale to be taxed
at scale B, including costs of counsel.
______ __
J.S. NYATHI
Judge of the High Court
Gauteng Division,
Pretoria
I agree:
________________________
MNGQIBISA-THUSI J
Judge of the High Court
Gauteng Division, Pretoria
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I agree:
__ ___
SWANEPOEL J
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 08 October 2025
Date of Judgment: 15 April 2026
On behalf of the Appellants: Adv. A.J. Glendinning
Applicant’s attorneys: LM du Toit Attorneys Inc.
On behalf of the Respondents: No Appearance
Respondent’s attorneys: State Attorney.
Delivery: This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand-
down is deemed to be 15 April 2026.