IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 3852/2020P
In the matter between:
FRANCE SIBUSISO NXUMALO N.O. First Applicant
NHLANHLA MARGARET NXUMALO N.O. Second Applicant
NTOMBIFUTHI PRETTY DALINDABA N.O. Third Applicant
MALUSI SKHUMBUZO NXUMALO N.O. Fourth Applicant
BONGUMUSA MUNTUKAYISE NXUMALO N.O. Fifth Applicant
And
MEC FOR TRANSPORT, COMMUNITY SAFETY
AND LIASON
First Respondent
HEAD OF DEPARTMENT OF TRANSPORT,
KWAZULU-NATAL
Second Respondent
ORDER
PURSUANT TO THE HEARING OF THE APPLICANTS’ APPLICATION FOR
LEAVE TO APPEAL ON 5 MAY 2026, THE FOLLOWING ORDER IS MADE:
1. The applicants’ application for leave to appeal is refused.
2. The applicants, jointly and severally, in their capacities for the time being of
the Flymon Zakhele Nxumalo Family Trust, are to pay the costs of the
application for leave to appeal on scale B of the applicable tariff.
JUDGMENT
VAN ROOYEN AJ
[1] Following a judgment delivered on 5 March 2026 in terms of which the
applicants’ application was dismissed with costs, the applicants applied for leave to
appeal the full judgment. The application for leave to appeal was heard on 5 May
2026. Ms Mdlalose appeared for the applicants and Ms Mzibuko -Mudau appeared
for the respondent.
[2] The crux of the application for leave to appeal revolved around the contention
that I erred in finding that the respondents had provided detailed reasons for their
decision in a letter dated 25 June 2020, “whereas it was a regurgitation of the tender
document”. Coupled to this was my alleged error in finding that the applicants had
failed to exhaust internal remedies by not appealing the decision to allocate routes
and buses to the Trust. This contention is fortified by the allegation that there was
no appeal mechanism available for the Trust “as this was a decision made after the
prescribed appeal period”.
[3] Another court would not come to the conclusion that the respondents had
failed to provide reasons for their decision on request nor that the Trust had failed to
exhaust internal appeal remedies.
[4] The applicants knew that the Trust had an internal appeal remedy and the
deponent on behalf of the Trust in fact went on oath to deny that reasons were
provided by the Department. The applicants failed to put up the letter of 25 June
2020 in which the Department provided reasons for its decision to allocate routes
and the number of buses to the Trust. The aforesaid deponent continues on oath to
say that, had the reasons been provided timeously, the Trust would have lodged an
appeal, thereby preventing an award to the tenderers.
[5] The Trust may not have been satisfied with the reasons but that did not mean
that they did not have an internal remedy which it knew it could exercise. The denial
that reasons were given also called into question the honesty of the deponent
trustee.
that reasons were given also called into question the honesty of the deponent
trustee.
[6] There was no dispute between the parties at the hearing of the application for
leave to appeal that the KwaZulu -Natal Supply Chain Management Policy
Framework constituted “any other law” envisaged by Section 7(2)(a) of the
Promotion of Administrative Justice Act, 3 of 2000.
[7] The Trust failed to exhaust an internal appeal remedy which it was aware it
had. Another court would not come to the conclusion that there were exceptional
circumstances on which to exempt the applicants from first having to exhaust their
internal remedies in the interests of justice.
[8] The contract expired in June 2025. The applicants sought an order directing
the respondents to award the applicants routes that would put the applicants on par
with the favoured bidder for the balance of the contract, within three months of the
order. Another court would not find that the latter relief sought has not become
moot.
[9] Another court would not find that there were exceptional circumstances for the
awarding of compensation in terms of Section 8(1)(c)(ii)(bb) of the Act. Another
court would agree that the remedy of an award for compensation is linked to the
setting aside of administrative action and can only be made in exceptional
circumstances. The administrative decision was not set aside in terms of the Act
and an order for compensation could thus not follow.
[10] As a result, I make the following order:
10.1 The applicants’ application for leave to appeal is refused.
10.2 The applicants, jointly and severally, in their capacities as trustees for
the time being of the Flymon Zakhele Nxumalo Family Trust, are to pay the
costs of the application on scale B of the applicable tariff.
_________________________
VAN ROOYEN AJ
Date reserved: 5 May 2026
Date delivered: 29 May 2026
For Applicant: Ms Mdlalose
Instructed by: Cebisa Attorneys Inc.
Durban
Tel: 031 301 1155
Emal: emmanuel@cebisaatorneys.co.za
C/O: Shepstone & Wylie
Pietermaritzburg
For Respondent: Ms Mazibuko Mudau
Instructed by: GNG Inc.
Pietermaritzburg
Email: glitigation3@gngattorneys.co.za
Tel: 033 345 3427/9
Ref: PG/an/D1200/50/50