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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
Case No: 740/2024
In the matter between:
O S HOLDINGS (PTY) LTD Applicant
(Reg No:201/087619/07)
And
RUSTENBURG LOCAL MUNICIPALITY First respondent
MUNICIPALITY MANAGER:
RUSTENBURG LOCAL MUNICIPALITY second respondent
The executive mayor
RUSTENBURG LOCAL MUNICIPALITY Third respondent
CHAIRMAN: BID EVALUATION
COMMITTEE Fourth respondent
CHAIRMAN: BID ADJUDICATION
Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
COMMMITEE Fifth Respondent
Delivered: This judgment is handed down electronically by circulation to
the parties through their legal representatives' email addresses. The date
for the hand-down is deemed to be on 29 APRIL 2026 at 1 OhOO AM
ORDER
1. The application for leave to appeal is dismissed .
2. The applicant is to pay the respondents costs ,on party and party
scale including the costs of counsel, on scale B.
JUDGMENT
MOKHAREAJ
1. This is an application for leave to appeal to the Full Bench of this
Court, alternatively, the Supreme Court of Appeal against the whole
judgment and order granted in the main application. For
convenience, the parties are referred to as cited in the main
proceedings.
2. The application is brought in terms of section 17(1 )(a) of the
Superior Courts Act 10 of 2013 ("the Act"). The applicant contends
that the Court erred in material respects and that the appeal would
have reasonable prospects of success or, alternatively, that there
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exist compelling reasons why the appeal should be heard.
3. The grounds of appeal relied upon by the applicant may be
summarized as follows:
3.1 That the Court erred in not striking out the entire answering
affidavit on the basis that the deponent lacked personal
knowledge and failed to obtain confirmatory affidavits;
3.2 That the Court failed to apply the principle of stare decisis,
particularly the judgment of Applemint Properties 108 (Pty) Ltd
v Rustenburg Local Municipality; and
3.3 That the Court erred in finding that the meeting and minutes
of 11 October 2023 did not constitute administrative action
susceptible to review under the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”).
The Test for Leave to Appeal
4. Section 17(1) of the Superior Courts Act, 10 of 2013 provides that
the test to be applied in determining whether leave to appeal should
be granted is whether the presiding judge is “of the opinion that the
appeal would have a reasonable prospect of success or there is
some other compelling reason why the appeal should be heard”.
5. In The Mont Cheveaux Trust 1 The Mont Cheveaux Trust v Tina
Goosen and 18 Others 2014 (JDR) 3225 (LCC) . Justice
Bertelsmann explained that section 17(1)(a)(i) of the Act postulates
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a higher test than what had previously applied in terms of the
common law. This is because the legislature had used the phrase
“the appeal would have a reasonable prospect of success”. Justice
Bertelsmann said the following in this regard:
‘It is clear that the threshold for granting leave to appeal against a judgment of
a high court has been raised in the new act. The former test whether leave to
appeal should be granted was a reasonable prospect that another Court might
come to a different conclusion … The use of the word ‘would’ in the new statute
indicates a measure of certainty that another Court will differ from the Court
whose judgment is sought to be appealed against’.
6. That threshold has been raised and has been confirmed, referred to
and cited with approval in several judgements: Notshokudu v S
[2016] ZASCA 112 (7 September 2016) at par 2. In Caratco (Pty)
Limited v Independent advisory Pty) Limited 2020 (5) SA 35 (SCA)
the following was stated at paragraph [2]:
‘in order to be granted leave to appeal in terms of section 17 (1)(a)(i) and (ii) of
the Superior Courts Act 10 of 2013 an applicant for leave to appeal must satisfy
the Court that the appeal would have a reasonable prospect of success or that
there are som e other compelling reasons why the appeal should be heard. If
the court is unpersuaded of the prospects of success, it must still enquire
whether there is compelling reason to entertain the appeal. A compelling reason
included an important question of law or a discreet issue of public importance
that will have an effect on future disputes. But here too, the merits remain vitally
important and are often decisive.’
I have considered the grounds of appeal, arguments of both counsel
and the heads of arguments filed herein. I am of the view that the
appeal would not have a reasonable prospect of success and there
is no compelling reason why the appeal should be heard.
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Lack of personal knowledge by the respondent ‘s deponent.
7. The applicant sought to strike out the answering affidavit deposed
to by Mr Ashmar Ranthekeng Khuduge, the Municipal Manager, on
the basis that he allegedly lacked personal knowledge of the matters
contained therein. Alternatively, the applicant sought the striking out
of specific paragraphs dealing with events prior to his employment.
8. It is common cause that the Municipal Manager commenced
employment on 1 October 2023. The tender validity period expired
on 12 October 2023. The Bid Evaluation Committee made
recommendations to the Bid Adjudication Committee, which in turn
considered the matter on 11 October 2023.
9. At the time of the meeting of 11 October 2023, the Municipal
Manager was already in the employ of the Municipality, and the
recommendations of the Bid Adjudication Committee were made to
him in his official capacity as accounting officer.
10. While it is accepted that the Municipal Manager was not employed
at the time when the tender was advertised and when certain earlier
events transpired, it does not follow that the entire affidavit was
devoid of personal knowledge.
11. This Court accordingly struck out those portions of the answering
affidavit that related to events preceding the Municipal Manager’s
employment, while allowing those portions dealing with matters
within his personal knowledge to stand.
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12. In Voight v Magistrate of Magistrates Court, East London
(EL457/2023) [2024] ZAECELLC 40 (5 September 2024) the
Court stated that:
‘The answering affidavit was deposed to by the members' attorney, Ms
Moodley, who claims to have had personal knowledge of the facts deposed to
without providing any context under which she could have acquired such
knowledge of the assertion referenced above.’
13. The respondents’ answering was deposed to by the fourth
respondents and he does state as to how became aware of
information or occurrence which took place during his employment
in the Municipality.
14. The applicant’s contention that the entire answering affidavit ought
to have been struck out is therefore without merit. This ground of
appeal cannot succeed.
The Principle of Stare Decisis.
15. The applicant further contends that this Court failed to apply the
principle of stare decisis by not following the judgment of Masike AJ
in Applemint Properties 108 (Pty) Ltd v Rustenburg Local
Municipality (Case No. 3855/2024).
16. In that matter, the Court criticized the deponent for relying on
information relating to events that occurred prior to his employment,
without explaining how such information was obtained or providing
confirmatory affidavits.
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17. That case is clearly distinguishable from the present matter. In
the Applemint judgment, the deponent purported to testify to
matters occurring before his employment without any explanation.
18. In the present matter, paragraphs dealing with events outside the
Municipal Manager’s knowledge were struck out, and only those
falling within his period of employment were retained.
19. Accordingly, there was no deviation from binding precedent, nor did
the Court disregard the principle of stare decisis . This ground of
appeal is devoid of merit.
No administrative decision taken.
20. The applicant submits that the Court erred in finding that the meeting
of 11 October 2023 did not constitute administrative action.
21. For PAJA to apply, there must be a decision that has direct external
legal effect. The evidence shows that on 13 October 2023; the Bid
Adjudication Committee informed the Municipal Manager that the
tender validity period had lapsed on 12 October 2023 and that no
further consideration could lawfully take place.
22. Once the tender validity period expired, the accounting officer was
legally precluded from making an appointment. No administrative
decision capable of review under PAJA could therefore arise.
23. This approach is consistent with the principles articulated in Joubert
Galpin Searle Inc v Road Accident Fund 2014 (4) SA 148 (ECP),
where it was held that once no valid tender award can be made,
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there is no administrative action susceptible to review.
24. In the absence of a lawful decision, the applicant’s reliance on PAJA
is misplaced. This ground of appeal likewise cannot succeed.
COSTS
25. On issues of costs, I am satisfied the costs should follow the events.
Order
26. Accordingly, the following order is made:
1. The application for leave to appeal is dismissed.
2. The applicant is to pay the respondents costs ,on party and party
scale including the costs of counsel, on scale B.
_______________________
T C MOKHARE
ACTING JUDGE
NORTHWEST DIVISION
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APPEARANCES
DATE OF HEARING :27 MARCH 2026
DATE OF JUDGMENT :29 APRIL 2026
COUNSEL FOR APPLICANT :ADV L MONNAKGOTLA
Instructed by : DIRK COETZEE ATTORNEYS
COUNSEL FOR RESPONDENT : ADV M MOTLOGELWA
Instructed by :SETSHEDI MAKGALE &
MATLAPENG INC