IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
CASE NO. 6084/2018
In the matter between:
SAMBUMBU AND ASSOCIATES Plaintiff
And
INDEPENDENT DEVELOPMENT TRUST Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
Introduction
[1]
“…The norm-setting constitutional provision on the procurement of goods and
services by organs of state is section 217 of the Constitution. This section
provides that when an organ of state “contracts for goods or services, it must do
so in accordance with a system which is fair, equitable, transparent, competitive
and cost-effective1.”
1 Minister of Finance Afribusiness NPC 2022 (4) SA 362 (CC); 2022 (9) BCLR 1108 (CC) para 97.
The above salutary words of Madlanga J brought to the forefront of our national
psyche a stark reminder about the constitutional injunction provided for in section
217 of our Constitution which must be observed by all organs of state in their day to
day procurement of goods and services. The controversy in this matter is whether
relief can be granted for payment for services procured by an organ of state without
following a system which is fair, equitable, transparent, competitive and cost
effective. Differ ently put, whether an organ of state can be held liable and
consequently, be ordered to pay a service provider as a just and equitable remedy
where services were procured without honouring this constitutional injunction. This
is the conundrum that must be resolved in this matter.
Pleadings
[2] Plaintiff instituted action proceedings for the recovery of a payment due for
architectural services rendered by it subsequent to the conclusion of an oral
agreement between Mr Sambumbu representing the plaintiff and Mr Makupula, the
regional general manager of the defendant in his capacity as such. The material
terms of the agreement were, inter alia, that the plaintiff would assess the building of
a new Toli Senior Secondary School in Lusikisiki (the Toli project) and the
conceptualisation and produc tion of a report for the development of that school. In
compliance with these material terms of its mandate, the plaintiff performed work
related to stage 1 by appraising the site, the rights, budgetary constraints, the need
for consultants, project programme and methods of contracting.
[3] In respect of stage 2 of the agreement, the plaintiff performed its mandate by
finalising the concept design and its viability. In this regard the plaintiff prepared an
initial design and advised on the intended space provision and planning
relationships; the proposed materials and intended building services; the technical
and functional characteristics of the design; the conformity of the concept design with
the rights of use to the land; the review of the anticipated costs of the project and
reviewed the project program. All these services were rendered for the benefit of the
defendant in accordance with the regulations passed in terms of the Architectural
Profession Act, 44 of 2000 (the Act).
[4] A further material term of the agreement was that the defendant would pay the
plaintiff in terms of the Act and the regulations promulgated thereunder. The fees
charged for the aforesaid architectural services would be as provided for in the Act
and regulations which also provide for work stages. Such fees are charged in
accordance with the estimated value of the project as per the quantity surveyor’s
report which was R429 491 401.96 less 18% fees and disbursements. The plaintiff
rendered the aforesaid services at the instance of the defendant during the period
July 2015 to February 2016 and produced a report and briefed the defendant with
the report together with the principal agent. In June 2016 the plaintiff issued an
invoice for the amount of R16 776 771.89 for services rendered as aforesaid.
[5] The defendant, in breach of the agreement, adopted the designs and concept of
the plaintiff for the construction of Toli Senior Secondary School, but utilized the
services of another architect who had not drawn the designs and who had not
formulated the concept design. The defendant accordingly repudiated the
agreement, and such repudiation was accepted by the plaintiff. As a result of such
repudiation the defendant made payment to another architect on designs and
concepts that had been formulated by the plaintiff and did not pay the plaintiff for the
services rendered.
[6] In the first instance the defendant pleaded non-compliance with section 217 of the
Constitution alleging that in procuring plaintiff’s services it did not do so in a manner
that is fair, equitable, transparent, competitive and cost effective. On that basis, it
pleaded that such contract was invalid and therefore it is not liable to pay the plaintiff.
In the second instance it denied that it entered into a contract with the plaintiff in the
nature and on the terms alleged. It further denied that Mr Maku pula who allegedly
entered into the contract was authorised to enter into such a contract with the plaintiff
on behalf of the defendant. It further denied knowing or appointing MZL007 Quantity
Surveyors as its principal agents and alleged that it was MZL007 who appointed the
plaintiff. In the final analysis, it denied being aware of the alleged invoice which it
alleged, would have been issued to the project manager and not to it and further
alleged that in light of the alleged non -existence of the contrac t and its invalidity, it
denied being in breach thereof.
[7] In replication, plaintiff admitted the defendant’s non -compliance with section 217
of the Constitution in the procurement of its services. It, however, pleaded that it did
render the services in terms of the contract concluded with the defendant from which
the defendant benefited. The defendant was accordingly enriched while it was
impoverished as a result of the defendant’s breach. It therefore pleaded that it is just
and equitable that it should be compensated for the services it rendered to the
defendant for which it held the defendant liable. It denied that Mr Makupula who
represented the defendant had no authority to enter into that contract. It further
pleaded that even if Mr Makupula did not have such authority, he represented to the
plaintiff that he had the authority to enter into the contract on behalf of the defendant.
The defendant never informed the plaintiff about Mr Makupula’s lack of authority nor
The defendant never informed the plaintiff about Mr Makupula’s lack of authority nor
did it object to the plaintiff’s performance of the contract on the basis of his alleged
lack of authority to conclude the contract. The plaintiff further pleaded that it bona
fide acted on the basis of the defendant’s and Mr Makupula’s representations. In any
event, it was unaware of the defendant’s internal arrangements and had no basis to
doubt Mr Makupula’s representations.
Plaintiff’s evidence
[8] Mr Sambumbu testified for the plaintiff. His evidence was that he was a sole
member of the plaintiff at the time the contract was concluded. He is a professional
architect and practices as such having qualified at the University of Cape Town in
1999. As an architect he designs buildings which he starts by receiving a briefing at
an initial stage of the process in which the client’s conceptualisation of the building
desired is converted into a drawing. His relationship with the defendant started
around year 2000. He received instructions in two ways which was either
telephonically or by means of a fax or later by email when the latter also became a
mode of communication.
[9] Such instructions would, from time to time, come from either the defendant’s
regional general manager or one of the technical staff members. His relationship
with the defendant started by him going to the defendant to see the regional general
manager at the time to introduce his company’s services. In introducing themselves
the plaintiff prepared a profile with all their contact information, and he believes the
defendant kept a data of their potential service providers as the plaintiff was not the
only architects that provided services to the defendant. At that stage, his company
was the only black owned company in the former Transkei area which worked to his
advantage. Throughout his company’s relationship with the defendant, at no stage
was there an advertisement of a bid for projects for which bidders were required to
submit bids. They received either a telephone call or a fax when their services were
required. A letter of appointment would be faxed to them, or the instructions would
be conveyed telephonically. The letter of appointment would sometimes come first or
sometimes while the plaintiff was already doing the work where it would have been
instructed telephonically. Some of the letters of appointment would be given to him
when he submitted invoices as the work of an architect gets completed when the
building itself has been finished or its construction is completed. He would send an
invoice according to a stage of the process and would sometimes only then be given
a letter of appointment. Some stages would go up to 20 or 30 stages until the
building construction is completed.
[10] He also testified in relation to some of the other projects plaintiff had been
appointed to do before the Toli project. One of those was in respect of Mpindweni
Senior Secondary School in Mzimvubu Municipality. The letter of appointment in
respect of that project was dated 12 July 2012. He could not recall the date on which
he was given that letter of appointment. Plaintiff never submitted any tender for that
project and it was paid for services rendered. He then referred to another letter of
appointment from the defendant dated 20 May 2013 which was for Mgqumangwe
SPS in Lusikisiki for which plaintiff was also paid by the defendant. It was never
invited to submit any bid for that work, and it never submitted any bid. It was the
defendant that approached the plaintiff to do the work. He could not remember
whether he was asked telephonically or by email to do that project. The work was
done and plaintiff was paid for the services rendered. Mr Sambumbu also referred to
another project in respect of which the letter of appointment was dated 26 April 2012.
This project was in respect of Kwaqonda Special School for which the plaintiff was
also paid by the defendant. Plaintiff was never invited to submit any tender for that
project and it never submitted any bid for it.
[11] He testified that these were all just examples of the many projects the plaintiff
was asked to do for the defendant in respect of all of which the plaintiff was
appointed, did the work and got paid for services rendered. All the appointment
letters were signed by Mr Makupula either as the acting regional general manager
and later as the regional general manager of the defendant. Plaintiff was paid for all
the services it rendered over the years for all the projects it did for the defendant. He
testified that in respect of the letter of appointment dated 5 May 2015 he became
aware of a bid that had been published by the defendant and submitted a bid in
December 2014. That letter of appointment was also signed by the regional general
manager of the defendant, Mr Makupula. That project was for the upgrading of the
kitchens for the Department of Correctional Services in Cofimvaba, Ngcobo,
Dordrecht and Lady Frere Correctional Centres. In respect of all the projects the
plaintiff did for the defendant, paym ent was according to the various stages of each
project until a project was completed at which stage keys were handed over to the
client department concerned. For each stage they reported to the defendant in terms
of what would have been done up to that stage. Reports would be in the form of a
presentation meeting with the defendant’s officials in which he would take those
officials through his written reports.
[12] In respect of the Toli project, Mr Sambumbu testified that plaintiff was appointed
to attend to or provide architectural services at Toli Senior Secondary School in
Lusikisiki on 27 July 2015. He was asked to assess that school and produce a
report. This entailed going to that school and assessing its facilities as well as what
needed to be done. He found the school dilapidated with classrooms having cracks
all over. In some classrooms there were no doors with the result that on rainy days
animals would use them as shelter. He referred to his detailed assessment report
which was annexed to plaintiff’s particulars of claim. In respect of that project the
client department was the department of education on whose behalf the defendant
was doing the project. He submitted his report on 23 November 2015 to the
defendant. He had received an email inviting him to come to the defendant’s offices
to present his report in respect of that project. The defendant’s appointed quantity
surveyor, Mr Mshunqwana also attended that presentation meeting. It took place at
the defendant’s boardroom in East London. The email reflected that it was sent by
Mr Makupula, the defendant’s regional general manager. Present in that
presentation meeting were himself, Mr Mshunqwana, Mr Makupula, Mr Sepho Pefole
who was the department of education’s architect, Mr Mnqanqeni represented the
department of education’s engineering section, Mr Giqo was one of the defendant’s
representatives, Mr Gcelu, the technical manager or project manager of the
defendant was also in attendance.
[13] He presented the plaintiff’s report including drawings which were in a memory
stick. He did the presentation through a projector so that everyone in the meeting
could see the nature of the work that needed to be done. The defendant was
satisfied with his presentation. He left the original documents with the defendant in
that meeting and kept copies thereof for his own records. Mr Mshunqwana also
presented a report in that same meeting relating to his financial assessment of the
project. Mr Mshunqwana’s report was based on his report and his drawings and Mr
Mshunqwana’s report was also given to the defendant. Stages 1 and 2 were already
completed when he made the presentation.
[14] After that presentation he waited for the defendant to indicate if any adjustments
or changes were deemed necessary by the defendant or areas that needed to be
revised. After waiting, he started making follow ups telephonically, but he never
received any feedback. He ended up issuing an invoice for services he had
rendered up to that point. His invoice was based on gazetted fee scales for
architects. He testified that in respect of stage 1, the fees are 5% of the total fees for
the project, for stage 2 fees are calculated at 15% of the total fees.
[15] During cross examination Mr Sambumbu confirmed that in 2015 he was aware
that the defendant did have a supply chain management policy when he entered into
an oral agreement with it in respect of the Toli project. He confirmed the letter dated
13 July 2012 in which he was appointed for the Mpindweni SPS project. He testified
that when he was instructed by the defendant to do the Mpindweni SPS project it
was not the first time he was given a verbal telephonic instructions to attend to a
project and the letter of appointment issued later while already doing the project. He
testified that in the Toli project he made his presentation to a group of people from
the defendant and the department of education who had been invited to the
presentation. Those people included Mr Makupula, the regional general manager of
the defendant, the engineer representing the department of education, the quantity
surveyor also from the department of education and project manager from the
defendant. It was put to Mr Sambumbu t hat a witness of the defendant would testify
that his company was never appointed for the Toli project which he disputed. It was
further put to him that the defendant has no record of him being appointed for the
Toli project and that there was another professional team that was appointed in 2016
for the Toli project.
[16] He further testified that all the attendees to the presentation meeting were
required to sign an attendance register. The defendant’s officials also took minutes
of the meeting which were to be sent to the attendees afterwards. After requesting to
be furnished with the minutes of that meeting to no avail he eventually gave up. He
confirmed that the tender for the Toli project was never advertised and there were no
bid specifications, no bid evaluation process and there was no bid adjudication
process. He testified that he would just receive an appointment letter via email or fax
which was still being used at the time. He did not know the process followed by the
defendant internally before he received the telephone call to do the work for the Toli
project as was the case with the many projects he had done for the defendant.
Defendant’s evidence
[17] Mr Somdaka who was called by the defendant testified that he was an employee
of the defendant holding the position of a project manager stationed at the
defendant’s East London office. He was employed at the defendant’s Bloemfontein
office in 2013 as a project manager before he was seconded to the East London
office in the same position in 2021. He was formally transferred to their East London
office in October 2023. He testified that the department of education would engage
the defendant’s senior ma nagers if they wanted to build a school. Normally, the
project managers of the defendant would go to that school to engage with
stakeholders and members of the community and the school governing body to
introduce themselves. The defendant would then engage professional service
providers which are the architects, the engineers and quantity surveyors to go and
do an assessment of the condition of the existing school and what needs to be done.
They would then do a scope assessment and the site development plan . This is a
drawing of the layout of the needs of the school, the position of the new buildings as
well as a high -level estimate of the costing of the project. He further testified that
they keep records of their projects so that even 10 years down the line the records of
a project would still be available.
[18] In respect of the Toli project his evidence was that when he was seconded from
the Free State Province to come to East London, he found that the Toli project had
been stalled. The reasons for the project being stalled varied from government
funding not being available at the time the professional team was appointed as well
as land disputes among local communities. When he arrived the department of
education said that the project was being revived and that the community issues had
been resolved. He w as asked to resuscitate the project. He received a file from a
client representative in the defendant’s office. There was a kick -off meeting for the
restart of the project with the department of education and the professional team
being present. The architect was IDC Architects, civil and structural engineers were
Saunders and Humme. The quantity surveyors were Imvelo Quantity Surveyors.
There was also Califro Consulting Engineers. There was no other file involving
another professional team. While he w as aware that Sambumbu Architects were
also architects, they were not employed by the defendant when he joined the East
London office. He was not informed that they were involved in the Toli project.
[19] He testified that if an architect has drawn a site development plan the quantity
surveyor would quantify what needs to be done and cost it. The architect does a site
development plan and gives it to the appointed quantity surveyor who will cost it.
They will both do a formal submission to the defendant. The defendant will take the
presentation and scrutinize it after which they will engage the department of
education. The site development plan will first be delivered to the project manager.
There w ill be a formal meeting with the architect, the quantity surveyor and
engineers to scrutinize the site development plan and the costs after which if there
are any changes that are necessary, they are proposed at that meeting.
[20] Under cross -examination Mr Somdyala testified that he arrived at the
defendant’s East London office in 2021 and therefore he has no personal knowledge
of what happened between 2013 and 2020 in relation to the Toli project. He
therefore could not dispute that Mr Sambumbu submitted his assessment report and
site development plan to the defendant on 23 November 2015. He could not dispute
that Mr Sambumbu did submit his portfolio of work to the principal agent on that date
in the meeting. He could also not dispute that Mr Sambumbu submitted an invoice to
the defendant for the work he had done and that the defendant did not raise any
queries or objections about his portfolio of work. He had met Mr Makupula before in
2017 or 2018. He also met him in the public spaces in the past year or two. While
he could not confirm if he was still alive, he had not heard that he had passed on. He
knows Mr Gcelu who currently works at the defendant’s East London office as his
immediate supervisor. He is therefore still e mployed by the defendant. He did not
know Nomvuselelo Baso. He knows Nozibele Leka and that she worked for the
defendant in the Eastern Cape, but when he arrived in 2021, she was no longer
there. He knows Theunis Booysens and that he worked at the national office of the
defendant in Pretoria.
[21] His further evidence was that the only file he was aware of in respect of the Toli
project was the one that was handed to him when he arrived in 2021 which was that
of IDC Architects. He therefore would not know if there is another file predating the
IDC Architects file in their filing room. Therefore, it was not his evidence that no
other file for the Toli project exists in their offices. He was just not aware of it as it
was not brought to his attention or handed to him.
Analysis
[22] It behoves of me to first point out that there is only one version that was
presented which is that of the plaintiff. I say this not because no witness was called
at all by the defendant but because the one witness who was called, Mr Somdyala,
was, on his own version, not involved in this matter at all at the times relevant to this
case. However, his evidence was useful in another respect, that is that of assisting
the court to understand the general operations of the defendant when compliance
with t he relevant legislative prescripts and supply chain management policy of the
defendant was being observed. Beyond the procurement process, his evidence was
not materially different to that of Mr Sambumbu about what was expected of an
appointed architect. It was, however, strange that he could not even provide
evidence, even if such evidence would have been based on the perusal of the
relevant records at the defendant’s offices on anything at all about the Toli project
from anytime earlier than when that pro ject was restarted after his arrival in the
Eastern Cape. He could not testify even about the many documented instances of a
number of other projects that were allocated to the plaintiff for which, on the plaintiff’s
undisputed evidence, it was paid in full over a number of years having completed
those projects. What is more surprising is that being the only witness the defendant
elected to call, Mr Somdyala did not even investigate the Toli project internally. In
fact, at some stage during his evidence a nd in response to questions asked by the
court, he openly conceded that the Toli project file in respect of the plaintiff’s
appointment and execution of its mandate may very well be in their storage in their
offices. Therefore, it was not a case of him having looked for that file but could not
find it. He just never bothered to investigate the plaintiff’s allegations in preparation
for the defendant’s evidence so as to deal with the plaintiff’s pleaded case and its
evidence.
[23] Mr Sambumbu’s evidence was not in any way controverted. No evidence was
presented in respect of material aspects of the defendant’s own pleaded case. This
is despite the fact that defendant was perfectly placed in a position to rebut the
plaintiff’s evidence. Mr Somdyala could have looked for those files and acquainted
himself with all the documents relating to all the projects that were done by the
plaintiff including the Toli project. This is important because there is no evidence
that those files from the time of the plaintiff’s appointment for all those projects could
somehow not be found. Mr Somdyala just never bothered to look for them. He
strangely contented himself with the file that had been handed to him when he joined
the defendant’s Eastern Cape office knowing full well that he had not been called to
testify about the appointment of IDC Architects. He was going to testify about the
plaintiff’s appointment by the defendant which, on the defendant’s pleaded case, was
being disputed. This was d espite his own evidence that the defendant kept records
of project files so that even 10 years later the records would still be available.
[24] There is another reason why the defendant’s approach in defending this matter
is bewildering. It is that during the cross -examination of Mr Somdyala, he was
referred to an email invitation of the plaintiff and a number of other people some of
whom were the department of education officials which was the defendant’s client
department while others were the defendant’s officials. Furthermore, Mr Somdyala
testified that he had seen Mr Makupula in public spaces and that Mr Makupula was
no longer working for the defendant. He had seen him in the last year or two and that
he had not heard anything suggesting that Mr Makupula was deceased. No evidence
was presented of him having been sought but was somehow unavailable or had
refused to testify in these proceedings or why he could not be subpoenaed. He was
just ignored.
[25] This is despite Mr Sambumbu’s evidence that Mr Makupula, as he had done so
many times before, even in this instance, had instructed the plaintiff to attend to the
Toli project on behalf of the defendant. On the face of it, it was Mr Makupula’s email
invitation that convened the presentation meeting of the 23 November 2015 inviting
all those attendees some of whom in fact attended the meeting at the defendant’s
offices. There was an issue raised by defendant’s counsel the effect of which was
whether ordinarily in such a presentation meeting there would not be minutes of such
a meeting and an attendance register. The difficulty with this issue being raised with
the plaintiff is that one would have expected the defendant to be the one with such
minutes and the attendance register. The defendant convened that meeting in its
own offices and therefore keeping minutes of the meeting and the attendance
register would be a matter within its own province. Besides, Mr Sambumbu’s
evidence was that he had asked for those minutes after the date of the meeting but
were not furnished to him. If the suggestion was that it ought to have been the
invitee, in this instance, Mr Sambumbu who prepared and produced the attendance
register and took minutes of that meeting, that does not make logical sense in as
much as it would go against the norm for an invitee to a meeting to prepare minutes
and see to the attendance register. In any event, no evidence was presented by the
defendant that no such meeting took place at the defendant’s offices on that date.
[26] The issue of Mr Makupula not being called by the defendant to testify also goes
for Mr Mshunqwana. On Mr Sambumbu’s evidence, Mr Mshunqwana was appointed
by the defendant as its quantity surveyor. He also attended that meeting and made a
presentation relating to the costing of the Toli project based on the plaintiff’s report.
He was also not called nor was it indicated why he was not being called. The same
goes for a few other employees of the defendant who could have been called but
were not called despite being mentioned by name by Mr Sambumbu in his evidence.
One of those employees was Mr Gcelu who, on Mr Somdyala’s evidence, not only is
he still in the employ of the defendant but also is Mr Somdyala’s current direct
supervisor. He was the project manager of the defendant in respect of the Toli
project on Mr Sambumbu’s evidence. He attended the meeting of the 23 November
2015. He could easily have been called but was just not called for no reason at all,
at least none that was given by the defendant. He was involved in this project and
through him, the defendant could have easily refuted Mr Sambumbu’s evidence if the
defendant wanted to do so. Instead, the defendant elected to rely on bland
generalisations, bald and therefore unsubstantiated denials it pleaded about which
no witness was called to give evidence. Lastly, even the witnesses whom it was
indicated during cross examination of Mr Sambumbu by defendant’s counsel, would
be called were inexplicably not called. The suspicion that the defendant deliberately
withheld evidence that it could have given to substantiate its case and was therefore
not being candid with the court is difficult to resist.
[27] In Kalil2 , which perforce, applies to the facts in this matter, it was held that:
“(W)here, as here, the legality of their actions is at stake, it is crucial for public
servants to neither be coy nor to play fast and loose with the truth. On the contrary, it
is their duty to take the court into their confidence and fully explain the facts so that
an informed decision can be taken in the interests of the public and good
governance.”
[28] The defendant’s failure to call relevant witnesses is not without implications. In
this regard our jurisprudence is clear. The inference to be drawn from a party’s
this regard our jurisprudence is clear. The inference to be drawn from a party’s
2 Kalil NO and Others v Mangaung Metropolitan Municipality and Others 2014 (5) SA 123 (SCA) para 30.
failure to call a witness who is available to testify in his/her favour as the defendant
has done is that that party fears that that witness’s evidence would have been
unfavourable to that party or his/her evidence may not pass the credibility test.
Counsel for the plaintiff submitted that the plaintiff did not have an equal opportunity
to call the witnesses the defendant could have called in that they were either current
or former employees of the defendant. Therefore, plaintiff did not have an equal
opportunity to call them. Besides, plaintiff was not aware during trial that the
defendant was not going to call them until the defendant closed its case.
[29] In making this argument which was completely ignored by the defendant in its
written submissions, counsel for the plaintiff relied on Raliphaswa3 which is an
authority on this point in which the Supreme Court of Appeal stated the legal position
as follows:
“In this court the respondents persisted with the argument that the court below was
justified in drawing an adverse inference against the appellant from the failure to
present the evidence of the sympathetic reservist who berated the respondents. The
appellant’s uncontradicted evidence was that he did not know the identity of this
reservist and, despite his request, the police refused to disclose it to him. The
appellant took a grave risk to allege that this reservist berated the respondents as
they were colleagues and could easily have called him to contradict the appellant.
The question may well be asked why they did not. When a witness is equally
available to both parties, but not called to give evidence, it is logically possible to
draw an adverse inference against both. The party on whom onus rests has no
greater obligation to call a witness, but may find that a failure to call a witness creates
the risk of the onus proving decisive. In the present matter the appellant did not have
an opportunity equal to the respondents to call this witness. The adverse inference
an opportunity equal to the respondents to call this witness. The adverse inference
drawn by the trial court against the appellant was unjustified in the circumstances.
An adverse inference in any event does not operate to destroy a case otherwise
proved, which is what appellant managed to do.”
3 Raliphaswa v Mugivhi and Others 2008 (4) SA 154 (SCA) para 15:
[30] As I said earlier, the possible witnesses were Mr Makupula, the defendant’s
former regional general manager, Mr Gcelu who was the project manager in respect
of the Toli project when the plaintiff did that project. He was also present in the
presentation meeting of the 23 November 2015 in which both Mr Sambumbu and Mr
Mshunqwana made presentations. These witnesses were not called. Mr Booysens
was also a potential witness as he was alleged to have also been present in the
meeting and was, according to Mr Somdyala’s evidence, still in the employ of the
defendant now based in its Pretoria office. The question that screams quite loudly is
why did the defendant not call any of these witnesses to contradict the evidence of
the plaintiff in support of its pleaded denials of liability. No explanation was made by
the defendant at all in this regard. It seems to me that the only logical reason, absent
a proper explanation to the contrary which was not proffered, is that if any of these
witnesses had been called, their evidence would have been unfavourable to the
defendant.
[31] With all of this having been said and the plaintiff’s evidence largely being
uncontradicted, it follows that the plaintiff has, on a balance of probabilities, proved
that it was appointed by the defendant to render architectural services for the Toli
project which it did. It has also proved that it rendered its services in respect of
stages 1 and 2 in respect of which it was, again on its uncontradicted evidence,
ordinarily entitled to be paid the amount claimed. However, there is another issue of
significance. That is the common cause fact that the services of the plaintiff in
respect of the Toli project were procured contrary to the process envisaged in
section 217 4 of the Constitution. That being the case the question is whether the
4 Section 217 of the Constitution of the Republic of South Africa, 1996 reads:
plaintiff is entitled to the payment of the amount claimed for services rendered in
circumstances in which it was appointed without following the proper procurement
processes. Before I deal with this issue, I consider it convenient to first deal with the
defendant’s plea relating to Mr Makupula’s lack of authority to enter into that contract
on behalf of the defendant. It is to this issue that I now turn.
Mr Makupula’s authority
[32] The defendant’s special plea in this regard is that while it is so that Mr Makupula
was its regional general manager, he had no authority to bind the defendant to the
contract. Regrettably, the basis for this contention is not pleaded nor was any
evidence on it led. In its replication, the plaintiff pleads a denial that Mr Makupula
had no authority to bind the defendant. It further pleads that in any event, Mr
Makupula represented to it that he had authority to contract on behalf of the
defendant. Fur thermore, it was never informed by the defendant about Mr
Makupula’s lack of authority and the defendant never objected to the plaintiff’s
performance in terms of the contract. Plaintiff therefore bona fide acted on the basis
of the defendant’s representations it being unaware of its internal arrangements and
had no basis to doubt Mr Mapukula’s representations.
[33] Plaintiff’s written submissions are to the effect that it has provided evidence
which is undisputed of more than three other contracts which were concluded by Mr
Makupula on behalf of the defendant. It is so that not only was that evidence not
(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 do so in
accordance with a system which is fair, equitable, transparent, competitive and cost-effective.
controverted but also its evidence that in respect of all those contracts it was paid for
the services it rendered was not challenged. No evidence was given by the
defendant to the effect that Mr Makupula had no authority to conclude the contract in
respect of the Toli project nor was any basis set out why he would lack authority to
bind the defendant in respect of the Toli project which he apparently did not lack for
the other projects. The conduct of the defendant in respect of all the contracts
concluded by Mr Makupula on its behalf suggests that Mr Makupula did in fact have
the necessary authority to conclude those contracts with service providers. If he
lacked such authority, he was allowed to represent, for many years, that he had such
authority as the evidence relating to the many other projects he had concluded with
the plaintiff on behalf of the defendant was not challenged.
[34] In positing this submission, counsel the plaintiff relied on Makate5 in which the
Constitutional Court, explaining actual and ostensible or apparent authority said:
“Actual authority and ostensible or apparent authority are the opposite sides of the
same coin. If an agent wishes to perform a juristic act on behalf of a principal, the
agent requires authority to do so for the act to bind the principal. If the principal had
conferred the necessary authority either expressly or impliedly, the agent is taken to
have actual authority. But if the principal were to deny that she had conferred the
authority, the third party who concluded the juristic act with the agent may plead
estoppel in replication. In this context, estoppel is not a form of authority but a rule to
the effect that if the principal had conducted herself in a manner that misled the third
party into believing the agent had authority, the principal is precluded from denying
that the agent had authority.
The same misrepresentation may also lead to an appearance that the agent has the
The same misrepresentation may also lead to an appearance that the agent has the
power to act on behalf of the principal. This is known as ostensible or apparent
authority in our law. While this kind of authority may not have been conferred by the
principal, it is still taken to be the authority of the agent as it appears to others. It is
distinguishable from estoppel which is not authority at all. Moreover, estoppel and
5 Makate v Vodacom Ltd 2016 (4) SA 121 at 138 (CC) paras 45 – 46.
apparent authority have different elements, barring one that is common to both. The
common element is the representation which may take the form of words or conduct.”
[35] The defendant not only pleaded a bare denial that Mr Makupula had authority to
contract with the plaintiff on its behalf but also failed to call any witness at all on that
issue. As if that was not mind boggling enough, the defendant’s written submissions
do not frontally deal with this issue at least not cogently even though it is not only
extensively pleaded by the plaintiff but also the plaintiff also dealt with it in its
evidence. The defendant’s denial of Mr Makupula’s actual and/or apparent aut hority
is therefore unsustainable as there is no basis for not accepting plaintiff’s
uncontradicted evidence in this regard. Not only is the plaintiff’s evidence regarding
the defendant’s representations unchallenged but also the basis on which in respect
of the Toli project which, like the many other projects before it were done without
following the process set out in section 217 of the Constitution, the defendant elected
not to call any relevant witness regarding the Toli project. It contented itself wi th
calling a witness whose only evidence related to what should or would happen when
its supply chain management policy was observed, something that was not in issue
at all as the plaintiff never contended that its appointment followed the defendant’s
supply chain management policy.
Section 217 of the Constitution
[36] Plaintiff made a two -pronged submission detailed in its written submissions on
this point. First, the plaintiff contended that the fact that the procurement of its
services for the Toli project did not follow the process envisaged in section 217 of the
Constitution did not, without more, mean that it is not entitled to be paid. It further
submitted that this is more so that there was no allegation of any wrongdoing or
corruption on its part or that it was somehow complicit in any wrongdoing or
corruption. Second, plaintiff contended that it is undisputed that it was not the author
of the unconstitutionality complained of in relation to the procurement of its services.
It further contended that on its undisputed evidence, the defendant would appoint
service providers either orally or in writing during the period between 2005 and 2016.
The defendant simply did not follow any tender process when it appointed service
providers at that time as it demonstrated with a number of examples. Plaintiff’s
evidence in this regard is also uncontradicted.
[37] I must say that for reasons best known to it and to it alone, the defendant chose
not to tender any evidence in rebuttal of the plaintiff’s evidence about how the
plaintiff was appointed for various projects over many years which it completed and
for which it was paid in almost all of which the section 217 tender process was not
followed, the same way that it was not followed in respect of the Toli project.
Furthermore, the defendant did not take the opportunity that was available to it of
calling any of the witnesses it could have called especially Mr Gcelu who, on the
plaintiff’s evidence, was involved in the Toli project. This is more so that not only was
Mr Gcelu, on the undisputed evidence of the plaintiff, involved in the project but he
was also present in the presentation meeting of the 23 November 2015. The need to
call Mr Gcelu and the ease with which he could have been called becomes even
more apparent considering that he was, on Mr Somdyala’s own evidence, still in the
employ of the defendant.
[38] In bolstering its submission that it must be paid for the services it rendered in
respect of the Toli project, non -compliance with section 217 of the Constitution
notwithstanding, the plaintiff also relied on Bravospan6. In that case the Supreme
Court of Appeal not so long ago expressed itself thusly:
“Bravospan was not responsible for the unconstitutionality of the extension
agreement. On the contrary, the municipality in this regard allayed its concerns. The
municipality had the benefit of Bravospan’s services for the full period from 1
November 2014 to 31 October 2016. Even after the municipality had launched its
review application on 9 February 2015, it persuaded Bravospan to continue to
perform services in terms of the extension agreement. At some stage, Bravospan
sent invoices to the municipality for services rendered and the municipality, in a letter
dated 8 July 2015, undertook to make payment of those invoices. The municipality
also sought and obtained legal opinion from its own attorneys that stated that the
municipality had been enriched at the expense of Bravospan and that the
municipality should pay. Given the role played by the municipality in the breach of
the Constitution, Bravospan should be afforded compensation for the services it
rendered as a just and equitable remedy under section 172 (1)(b).”
[39] Section 172 (1) of the Constitution reads:
“When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency; and
(b) may make an order that is just and equitable, including –
(i) an order limiting the retrospective effect of the declaration of invalidity;
and
(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect.”
[40] It is common ground that the awarding of the contract to the plaintiff by the
defendant without following the process prescribed in section 217 of the Constitution
was invalid. However, setting that contract aside is an impossibility and would
was invalid. However, setting that contract aside is an impossibility and would
amount to no more than a brutum fulmen as that contract is no longer in existence, it
having obviously run its course as it was awarded more than 10 years ago. On the
6 Greater Tzaneen Municipality v Bravospan 252 CC (Case no. 428/2021) [2022] ZASCA 155 (7 November 2022)
para 22.
undisputed evidence of the plaintiff, the Toli project did not go beyond stage 2 as the
defendant inexplicably failed to respond to any communication from the plaintiff and
also failed to pay the plaintiff’s invoice for services that had been rendered up to that
point. Even if the contract had not run its course, it would only be in an exceptionally
justifiable situation for the parties to be allowed to continue with their invalid contract.
Here, the plaintiff does not seek to hold the defendant to the terms of the contract
beyond the services that had already been rendered. It is simply seeking payment in
respect of the services it had already rendered which was for stages 1 and 2.
[41] Bravospan was taken on appeal to the Constitutional Court. In its second
iteration which was now before the Constitutional Court it was held that:
“[49] Unfortunately, the circumstances of this case are not unique. As Navsa ADP
stated in Goven Mbeki:
‘This case is part of an ever growing, and frankly disturbing, long line of cases
where municipalities and organs of state seek to have their own decisions,
upon which contracts with service providers are predicated, reviewed and
overturned, for want of legality, more often than not after contracts have run
their course and services have been rendered thereunder.’”7
[42] This is exactly what happened in this case. The defendant, in its written
submissions, contended that this Court should review and set aside the contract
between the plaintiff and the defendant under PAJA. The defendant’s alternative
submission was that the court should review the contract’s legality under the
provisions of section 217 of the Constitution. It went on to submit that it was not
required to initiate a formal review application as the matter is already before this
Court. This submission was made to buttress the defendant’s submission that it
should not be ordered to pay for the services which, on the evidence before this
should not be ordered to pay for the services which, on the evidence before this
7 Greater Tzaneen Municipality v Bravospan 2025 (1) SA 577 (CC) para 49.
Court, were rendered and were not paid for. The defendant does not properly
address the question of a just and equitable remedy in light of the services having
been rendered by the plaintiff in circumstances in which there is no evidence of
malfeasance or impropriety on the plaintiff’s part in that whole section 217
constitutional non-compliance. The fact that there was non -compliance with section
217 of the Constitution without more in the plaintiff’s appointment, is not an answer
at all to the question of a just and equitable remedy.
[43] In Bravospan8, Chaskalson AJ, writing for the majority, said:
“The judgment of the Supreme Court of Appeal will ensure that, after close to a
decade of waiting, Bravospan will finally receive just and equitable compensation for
the services that it has provided to the Municipality. That is plainly in the interests of
justice. To grant leave to appeal would delay compensation further. That would be
contrary to the interests of justice. Therefore, leave should be refused.
There are additional reasons why the interests of justice support the dismissal of the
application for leave to appeal on this narrow basis. First, such an approach will
send a clear message to the Municipality and other organs of state that they must
pay for services that are provided to them by an innocent contractor. This is not a
case where there is any pleaded allegation still less evidence of corruption or other
wrongdoing on the part of Bravospan that would justify the Municipality’s refusal to
pay it. Instead, the Municipality is opportunistically raising its own irregular conduct
to avoid paying Bravospan. As is clear from [49] of the first judgment, the
Municipality’s unconscionable conduct in the present case is part of a broader
phenomenon of organs of state seeking to rely on their own unlawful conduct to
avoid compensating innocent contractors for services that those contractors have
avoid compensating innocent contractors for services that those contractors have
provided to them. This court must make it clear that conduct of this sort will not be
tolerated.”
Conclusion
8 Note 6 supra at para 59-60
[44] On the undisputed evidence of the plaintiff having rendered services in respect
of the Toli project up to stage 2 and having presented evidence of the work it had
done up to stage 2 in a formal presentation meeting at the defendant’s offices
attended by all the necessary stakeholders including the defendant’ appointed
quantity surveyor who costed the plaintiff’s work and also made his own
presentation, the logical conclusion is that plaintiff must be paid. There is also no
issue about the basis of the invoiced amount and the plaintiff’s uncontested evidence
on how architectural services are charged for in similar projects. It was not
suggested that the amount claimed was not an equivalent of the amount that should
ordinarily be charged for such amount of work. This Court, while taking a very dim
view of the unconstitutional award of the contract, it must, on the facts of this case,
grant a just and equitable remedy in terms of section 172(1)(b) of the Constitution by
directing the defendant to pay for the services rendered in respect of the Toli project.
It follows that the plaintiff must succeed in its claim against the defendant. There is
no reason why costs should not follow the event.
Results
[45] In the result, the following order is issued:
1. Judgment is granted in favour of the plaintiff against the defendant for the amount
claimed in the sum of R16 776 771.89.
2. Defendant shall pay interest on the aforesaid amount at the legal rate from the
date of this judgment to date of payment.
3. Defendant shall pay plaintiff’s costs of suit on scale B which costs shall include the
costs of senior counsel whose costs shall be on scale C.
4. The defendant shall pay interests in respect of costs at the prescribed legal rate
from a date fourteen (14) days from the date of the allocatur to date of payment.
___________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearances
Counsel for the plaintiff : Z.Z. Matebese
Instructed by : WT Mnqandi & Associates
Mthatha
Counsel for the defendant : J. Mnisi
Instructed by : Ntabeni Attorneys
c/o Adrew Ngxola Attorneys
Mthatha
Date heard : 05 December 2025
Date delivered : 05 May 2026