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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 033351/2023
In the matter between :-
THE TRUSTEES FOR THE TIME BEING OF THE
INDEPENDENT DEVELOPMENT TRUST {IDT)
and
BAKHI DESIGN STUDIO CC
ADV TERRY MOTAU N.O.
ARBITRATION FOUNDATION OF SOUTH
AFRICA (AFSA)
Applicant
First Respondent
Second Respondent
Third Respondent
This judgment is handed down electronically by being placed on the electronic
medium CaseLines as used by the Department of Justice and Constitutional
Development . The date of the judgment is deemed to be 20 May 2026.
JUDGMENT
NO
NO
NO
NO
Reid J
Introduction
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[1] This matter comes before me as an opposed application for review in
terms of Part B of the applicant's notice of motion. The applicant, being
the Independent Development Trust (IDT), seeks to review and set aside
five decisions taken between 2013 and 2014 to appoint the first
respondent , Bakhi Design Studio CC, as a principal consultant and
project manager for various government departments . The applicant
also seeks to declare the resultant contracts void ab initio and to order
the repayment of profits.
[2] The applicant seeks condonation for the late launching of the review
application . The first respondent opposes the application for
condonation .
[3] The matter contains more than 700 pages and the parties should have
applied for a special motion date. The matter served before me on the
normal opposed motion roll. Since the parties did not request a special
motion date, the parties agreed, and I subsequently ordered, that this
Court will only determine the issue of condonation for the late filing of the
review applicat ion.
Background
[4] The impugned appointments occurred on 18 April 2013, 5 December
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2013, 23 January 2014, 7 October 2014, and 15 December 2014. The
contracts were signed on 13 December 2013 and 16 April 2015. The first
respondent's services were terminated on 1 July 2016.
[5] The first respondent was appointed by IDT as the principal
consultant/project manager for the provision of architectural services and
project manager services in respect of the implementation of various
projects for the Department of Agriculture . The first respondent contends
that all the work was duly and professionally executed. The period that
the first respondent executed the contract was approximately 3 years
which spanned from 18 April 2013 to 1 July 2016.
[6] On 14 November 2018, the first respondent issued summons against the
IDT for a substantial sum of approximately R42 million to claim monetary
payment and compensation arising from work done under these
appointments. The IDT filed a plea in March 2019. In that plea, the IDT
raised several of the same irregularities relied upon in the review
application , including the alleged failure of the first respondent's directors
to be registered under the Architectural Profession Act 44 of 2000.
(7) In September 2022, the parties agreed to refer the dispute to arbitration .
An arbitration agreement was signed, and an arbitrator was
consequently appointed. Pre-arbitration meetings were held in
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December 2022, 3 February 2023 and March 2023.
[8] On 14 April 2023, the IDT launched Part A of the present application on
an urgent basis, seeking interim relief (Part A) to interdict the arbitration
pending the review (Part B). The order in Part A was granted on 12 May
2023 by Labuschagne AJ in the following terms:
8.1. That the matter was heard on an urgent basis.
8.2. That the arbitration proceedings are stayed, pending these review
proceedings .
8.3. Pending the finalisation of this review application (Part B), the
respondents (Bhaki Trading) are interdicted from proceeding with
the arbitration proceedings between the applicant (IDT) and the first
respondent.
[9] The review application (Part B) was thereafter set down for hearing. The
IDT now seeks condonation for the delay in bringing the review. As
mentioned , the condonation application is the only issue that serves to
be determined by this Court.
The applicable legal principles
(1 O] The applicant brings the review application under the principle of legality
and not in terms of the Promotion of Administrative Justice Act 3 of 2000
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(PAJA). The applicant relies on State Information Technology Agency
SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA CC in which it was
determined by the Constitutional Court that Organs of State may not
bring reviews of their own decisions under PAJA, but it should bring such
reviews under the legality principle.
[11] The applicant further relies on Khumalo & Another v Member of the
Executive Council for Education: KwaZulu-Natal 2014 (5) SA 579 (CC)
("Khumalo") in which the Constitutional Court found that Organs of State
are to bring legality reviews, and not administrative justice reviews (in
terms of PAJA) to correct their own decisions. The applicant argues that
no formal condonation application is required because this is a legality
review, and the court may simply overlook the delay in the interests of
justice.
[12] In the Khumalo matter, the Member of the Executive Council for
Education, KwaZulu-Natal (the MEC) approached the court to set aside
impugned decisions to promote 2 individuals without following the correct
process and procedure. The decision to promote the individuals was
unlawful, and the MEC approached the court to set aside the promotions
in a self-review application. The matter raises the enforcement of the rule
of law in the context of a significant delay by the MEC in bringing her
challenge to court. For the reasons set out in in paragraphs [13] to [15]
of this judgment, the Constitutional Court did not condone the delay.
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[13] The Constitutional Court formulated a number of factors in Khumalo to
include in the assessment of whether the delay was unreasonable. This
was, in later decisions, referred to as the "Khumalo" test. The factors
relevant to assessing delay include:
13.1. The period of the delay;
13.2. The reasons given for the delay;
13.3. Whether the applicant can be said to have acted reasonably and
diligently;
13.4. Any prejudice to the respondent;
13.5. The importance of the issues raised; and
13.6. The overall interests of justice.
[14] In Khumalo , the Constitutional Court held that a court has a discretion to
overlook a delay, but that discretion must be exercised judicially , having
regard to the nature of the impugned decision, the reasons for the delay,
the prejudice to the respondent, and the interests of justice . This is set
out as follows in Khumalo:
"[44] But what do we make of the legislature's decision to remove
these time-limits? Does this mean that litigants are not
constrained by any requirement to act timeously? In my view, the
legislature's decision to remove the 12-month prescription period
opens the actions of public functionaries in terms of the PSA to
ongoing scrutiny and transparency. Bearing in mind the purpose
of the Repealing Act, the repeal of s 39 allows that an applicant
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cannot automatically be non-suited on the basis of a delay.
Nevertheless, it is a Jong-standing rule that a legality review
must be initiated without undue delay and that courts have the
power (as part of their inherent jurisdiction to regulate their own
proceedings) to refuse a review application in the face of an
undue delay in initiating proceedings or to overlook the delay.
This discretion is not open-ended and must be informed by the
values of the Constitution. However, because there are no
express, legislated time periods in which the MEG was required
to bring her application, there is no requirement that a formal
application for condonation needs to have been brought.
[45) In the previous section it was explained that the rule of Jaw is
a founding value of the Constitution, and that state functionaries
are enjoined to uphold and protect it, inter a/ia by seeking the
redress of their departments' unlawful decisions. Because of
these fundamental commitments, a court should be slow to allow
procedural obstacles to prevent it from looking into a challenge to
the lawfulness of an exercise of public power. But that does not
mean that the Constitution has dispensed with the basic
procedural requirement that review proceedings are to be
brought without undue delay or with a court's discretion to
overlook a delay.
[46) Section 237 of the Constitution provides: 'All constitutional
obligations must be performed diligently and without delay.'
Section 237 acknowledges the significance of timeous
compliance with constitutional prescripts. It elevates expeditious
and diligent compliance with constitutional duties to an obligation
in itself The principle is thus a requirement of legality.
[47) This requirement is based on sound judicial policy that
includes an understanding of the strong public interest in both
certainty and finality. People may base their actions on the
assumption of the lawfulness of a particular decision and the
assumption of the lawfulness of a particular decision and the
undoing of the decision threatens a myriad of consequent actions.
[48) In addition, it is important to understand that the passage of
a considerable length of time may weaken the ability of a court
to assess an instance of unlawfulness on the facts. The clarity
and accuracy of decision makers' memories are bound to decline
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with time. Documents and evidence may be lost or destroyed
when no longer required to be kept in archives. Thus the very
purpose of a court undertaking the review is potentially
undermined where, at the cause of a lengthy delay, its ability to
evaluate fully an allegation of illegality is impaired.
[49) In Gqwetha 2006 (2) SA 603 (SCA) the majority of the
Supreme Court of Appeal held that an assessment of a plea of
undue delay involves examining: (1) whether the delay is
unreasonable or undue (a factual enquiry upon which a value
judgment is made in the light of 'all the relevant
circumstances') ; and if so (2) whether the court's discretion
should be exercised to overlook the delay and nevertheless
entertain the application.
{52) But should we nevertheless overlook the unreasonable
delay? On this leg of the test, the majority in Gqwetha held that
the delay cannot be evaluated in a vacuum but must be assessed
with reference to its potential to prejudice the affected parties and
having regard to the possible consequences of setting aside the
impugned decision. In the context of public sector employment,
the value of security for employees and in mitigating the arguably
inherent inequality of the workplace must be kept in mind.
[53) Under the Constitution, however, the requirement to consider
the consequences of declaring the decision unlawful is mediated
by a court's remedial powers to grant a 1ust and equitable' order
in terms of s 172(1)(b) of the Constitution. A court has greater
powers under the Constitution to regulate any possible unjust
consequences by granting an appropriate order. While a court
must declare conduct that it finds to be unconstitutional invalid, it
need not set the conduct aside. The delay was indeed a factor
taken into account by the Labour Appeal Court when deciding
whether or not to set aside the applicants' promotions once they
had been found unlawful."
(Footnotes omitted ; own emphasis)
Page 9 of 22
[15] The conclusion in Khumalo was that the nature of the impugned decision
and the strength of the merits were additional considerations in
overlooking an unreasonable delay. It was found in Khumalo that the
delay constrained the ability of the court to determine the lawfulness of
the decision accurately, and that condoning the delay was not warranted .
The application for condonation was consequently dismissed .
[16] In Buffalo City Metropolitan Municipality v Alsa Construction (Pty)
Ltd 2019 ( 4) SA 331 (CC) ("Alsa") the facts that served before the
Constitutional Court were similar to the facts in casu. In Alsa, the
municipality decided to award a construction contract to a company
without following the tender process . The respondent performed the
work under the contract. The municipality later refused to pay, and the
respondent instituted proceedings for payment. The municipality's
defence was, that absent a lawful tender process, the decision to award
the contract was unlawful, and that this rendered the contract invalid. It
applied to review the decision to award the contract to the respondent.
The review was, however, brought out of time. The contract was
ultimately declared to be invalid, but was not set aside.
[17] In Alsa the Constitutional Court found that the decision to decide whether
the delay to institute review proceedings by an organ of state was
reasonable , are to be decided by considering the following four factors:
17.1.
17.2.
17.3.
17.4.
[18]
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The consequences of setting the decision aside.
The decision and the challenge to it (the asserted illegality).
The applicant's conduct.
The court's duty to declare an unlawful decision invalid.
Moreover in Alsa the Constitutional Court declared that the decision to '
award the contract was invalid, but despite the invalidity the contract
should not be set aside. This is to preserve the respondent's accrued
rights thereunder . It remained in force (albeit invalid) for the parties to
the contract to claim respective rights obtained under the contract. Only
existing rights could be claimed and not future rights.
[19] The following was held in Alsa as the majority decision:
"[104] When the Municipality took the view that the Reeston
contract was invalid, the implementation of the contract had
commenced and was continuing. The Municipality was content
for the respondent to complete the contract (building low-cost
houses) to the benefit of the Municipality and residents of
Reeston. It was common cause that the work has been practically
completed.
[105] In these circumstances, justice and equity dictate that the
Municipality should not benefit from its own undue delay and
in allowing the respondent to proceed to perform in terms of
the contract. I therefore make an order declaring the Reeston
contract invalid, but not setting it aside so as to preserve the rights
to that the respondent might have been entitled. It should be
noted that such an award preserves rights which have already
accrued but does not permit a party to obtain further rights under
the invalid agreement."
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(own emphasis)
[20] It was held by the Supreme Court of Appeal in A/tech Radio Holdings
(Pty) Ltd and Others v City of Tshwane Metropolitan Municipality 2021
(3) SA 25 (SCA) in paragraph [71] that:
"(t)he objective of state self-review should be to promote open,
responsive and accountable government. The conduct of [the
Department] renders the delay so unreasonable that it cannot be
condoned without turning a blind eye to its duty to act in a manner
that promotes reliance, accountability and rationality and that is
not legally and constitutionally unconscionable."
[21] The Supreme Court of Appeal in Govan Mbeki Municipality v New
Integrated Credit Solutions (Pty) Ltd 2021 (4) SA 436 (SCA) had the
following stern words to say in relation to self-reviews and inordinate
delays in bringing the self-review:
"[47] Appreciating that our law on self-review has become
somewhat encrusted, it would nevertheless be presumptuous of
us to become embroiled in the differences between the majority
and minority judgments in Asia. Our courts might, in time, after
adjudicating a string of cases with various permutations,
streamline an approach to self-review, or the legislature might
intervene, in a constitutionally compliant manner, to cover all
forms of review, including those that pertain to the executive and
provide for how delay is to impact on such reviews. The
Constitutional Court might, in time, revisit prior decisions. An
aspect, however, that is of immediate concern, noted at the
commencement of this judgment , is that self-review is now a
burgeoning and troubling phenomenon. As recorded by the
Constitutional Court in Asia, corruption and maladministration are
inconsistent with the rule of law and are the antithesis of open,
accountable and democratic government. The functionaries
involved are almost never subject to scrutiny and sanctions and
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in some cases falsely assume the moral high ground. The
problem, as the cases demonstrate, is that corrective action, by
way of self-review, is usually sought a considerable time after an
impugned decision was made and disciplinary steps against
those concerned might face time problems. However, if the
maladministration or corruption is discovered late by
conscientious officials seeking to take corrective and appropriate
action, courts might insist in the future that public authorities
seeking time indulgences set out the steps they took in relation to
the misconduct by errant officials that resulted in the need for
corrective action, including, but not limited to, disciplinary action,
and, where appropriate, criminal proceedings. All the more so, if
the corruption or maladministration was hidden from disclosure
by inept or corrupt officials. If a service provider was complicit,
then questions might be asked about what steps were taken by
the public authority in relation to such complicity. Beyond the
courts, these aspects might even be catered for by legislation. We
must all of us, in every branch of the state and civil society, make
every effort to protect public moneys and ensure that our country's
necessary developmental goals as envisaged by the Constitution,
in the interest of all our people, are met."
[22] In Special Investigating Unit and Another v Engineered Systems
Solutions (Pty) Ltd 2022 (5) SA 416 (SCA) the Supreme Court of Appeal
held that the test for legality reviews is reasonableness. If the delay in
the legality review is found to be unreasonable , then the next question
was whether the court ought, on the available facts, overlook the delay
in the interests of justice. Relevant factors included potential prejudice to
the affected parties, the consequences of setting aside the impugned
decision , the nature of the decision and the conduct of the appellant.
[23] I will now proceed to analyse the facts applicable to the application for
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condonation as provided by the abovementioned principles.
The period of delay
[24] The delay is extraordinary. The earliest appointment sought to be
reviewed is dated 18 April 2013, which is almost thirteen years before
this application for condonation was argued. The most recent
appointment is from 15 December 2014, which is more than eleven years
ago.
[25] The period of delay commences when the irregularity was discovered.
(See: Buffalo City Metropolitan Municipality v Alsa Construction (Pty)
Ltd 2019 (4) SA 331 (CC)). The contracts were terminated on 1 July
2016, nearly ten years ago. The applicant thus brought the application
for review only after a period of approximately ten years after discovering
the irregularity.
[26] It is significant that the IDT raised the core ground of review
(non-registration under the Architectural Profession Act 44 of 2000) in its
plea of March 2019. That was more than five years before this review
application was launched.
[27] Despite that awareness, the IDT did not then bring a review application
to set aside their decision. Instead, it participated in litigation, agreed to
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arbitration, and only afterwards sought to collaterally and retrospectively
attack the appointments.
[28] I cannot accept that the delay is anything other than grossly excessive.
The explanation for the delay
[29] The applicant argues that it became aware of the irregularities during
November 2018 when summons was issued. The applicant attributes
the delay in the discovery of the irregularities of the contracts, to the fact
that the contracts were executed in KwaZulu Natal, whilst the deponent
to the review application is situated in the IDT Head Office Pretoria. The
deponent states:
"363. The deponent sits at IDT Head Office at Pretoria and the
contracts which are the contract subject of this application were
issued by IDT KZN, hence only became aware of the issues
between the parties, not the irregularities thereof, from the date
that the summons was (served) around November 2018.
364. However, the IDT only became aware of possible
irregularities with respect to the impugned decisions around
September 2022, from the legal opinion of the, then appointed
counsel. The counsel, who has since been debriefed, was of the
opinion that the review proceedings could not be instituted by the
IDT and rather advised that the matter be referred to arbitration."
[30] The applicant's explanation is set out in paragraphs [359] to [381] of the
founding affidavit, deposed to by Ms Tebogo Malaka, the Acting CEO. In
summary , the IDT says:
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30.1. It only became aware of the irregularities around September 2022,
after receiving a legal opinion from counsel.
30.2 . Previous counsel had advised that review proceedings could not
be instituted, and instead recommended arbitration .
30.3 . New counsel was appointed in November 2022 and advised on 2
March 2023 to bring a legality review.
30.4. The IDT argued that it acted swiftly after receiving that advice,
launching the application on 14 April 2023.
[31] This explanation is, with respect, woefully inadequate and unpersuasive
for several reasons.
[32] First, the IDT's plea of March 2019 explicitly raised the lack of
professional registration as a defence. Ms Malaka (deponent to the
founding affidavit of IDT) says she only became aware of irregularities in
September 2022, but the IDT as an institution knew of the registration
issue from at least March 2019, when its legal representatives drafted
and filed the plea. An organ of state cannot shield itself from delay by
attributing ignorance to a particular deponent when the institution itself
had actual knowledge of the material irregularities through its legal
representatives .
[33] Second, the IDT does not explain why it took from March 2019 until
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September 2022 - a period of three and a half years - to obtain a legal
opinion on the legality of the appointments. The first respondent's
summons was served in November 2018. The IDT had every incentive
to investigate the validity of the contracts at the outset of the litigation. It
did not.
[34] Third, the IDT's reliance on the advice of previous counsel is not a
complete answer. The IDT is a sophisticated organ of state with ready
access to legal advice. If it received advice in September 2022 that a
review could not be brought, it does not explain why it took until
November 2022 to appoint new counsel, or why the new counsel took a
further five months (from November 2022 to April 2023) to finalise the
review application. The matter was already fully pleaded. The record was
available. The delay in preparing and instituting the review is
unexplained.
[35] Fourth, the IDT's decision to agree to arbitration in September 2022 is
inconsistent with its present stance that the appointments were unlawful
from the outset. The arbitration agreement was freely entered into. The
IDT did not then seek to review the appointments when litigation
commenced. It cannot now use its own change of legal strategy as a
justification for extreme delay.
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[36] In State Information Technology Agency SOC Ltd v Gijima Holdings
(Pty) Ltd 2018 (2) SA 23 (CC) (Gijima), the Constitutional Court
emphasised that an organ of state that seeks to self-review its own
conduct must act diligently and promptly. The IDT has not done so.
[37] The explanation proffered is simply inadequate.
Prejudice to the respondent
[38] The first respondent argues that it will suffer substantial prejudice should
an application for self-review be succesful. The contracts were
performed between 2013 and 2016. Invoices were rendered, work was
done (whether lawfully or not), and payments were made. IDT has on its
own version, accepted that the first respondent incurred costs and
provided services to IDT over many years. Furthermore, the passage of
time has inevitably led to the loss of documents, fading memories of
witnesses, and the unavailability of key personnel.
[39] It is argued that the IDT's delay may have been tactical. By waiting until
after the arbitration had been agreed upon and was well underway, the
IDT has sought to derail a process to which it voluntarily submitted. The
first respondent has incurred costs in preparing for arbitration, only to
have that process interdicted by the IDT. This is a form of prejudice to
which this Court cannot turn a blind eye.
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[40] The IDT argues that there is no prejudice because the review raises
issues of legality and the protection of public funds. That is not a
complete answer. Even in public procurement cases, the interests of
finality and the prejudice to private parties who have rendered services
in good faith (or at least without knowledge of the internal failures of the
procuring entity) must be considered. The first respondent is not an
innocent bystander; it may have known or ought to have known of the
procurement irregularities, but that does not mean it suffers no prejudice
from a decade-long delay.
[41] I find that the delay results in significant prejudice to the first respondent.
The interests of justice
[42] IDT places heavy reliance on the seriousness of the alleged
irregularities: the absence of a competitive bidding process, the lack of
registration under the Architectural Profession Act, the non-compliance
with VAT and the Public Finance Management Act 1 of 1999 (PFMA)
requirements, and the large sums of public money involved. I accept that
these are serious allegations . If proven, it would indeed point to a
profound failure of governance.
[43] However, the interests of justice are not one-sided. It also requires that
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legal proceedings be brought within a reasonable time, that parties not
be subject to indefinite uncertainty, and that organs of state be held to
the same standards of diligence (or higher) than ordinary litigants. In
Govan Mbeki Municipality v New Integrated Credit Solutions (Pty) Ltd
2021 (4) SA 436 (SCA) it was stated that a higher standard is required
from organs of state, since the public purse is at stake.
[44] In Brummer v Gorfil Brothers Investments (Pty) Ltd 2000 (2) SA 837
(CC), the Constitutional Court held that condonation is not a mere
formality ; it requires a full explanation of the delay, and the court has a
discretion to refuse condo11ation even where the prospects of success
are good , if the delay is inordinate and the explanation poor.
[45] Here the delay is inordinate - measured in years, indeed a decade. The
explanation is poor. The IDT knew of the core ground of review as early
as 2018. It chose a different litigation path. It cannot now, when that path
has become inconvenient, seek to revisit contracts made more than ten
years ago.
[46] To condone or overlook this delay would undermine the principle of
finality and send a message that organ of states may litigate at their
leisure, changing strategy whenever it suits them, while private parties
bear the burden of uncertainty and wasted costs. That is not in the
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interests of justice.
Conclusion
[47] After hearing argument and considering the papers in the court file, I hold
the view that the delay is unreasonable. For the reasons and on the
basis set out above, I find that the late institution of the review application
should not be condoned.
[48] I am satisfied that the application for condonation must be dismissed.
Costs
[49] As to costs, the first respondent has been substantially successful in
opposing condonation . There is no reason to deviate from the normal
rule that costs follow the result.
[50] The first respondent has sought costs on scale C (the scale applicable
to complex, opposed motion proceedings involving substantial
commercial interests). Given the complexity of the papers, the number
of legal representatives involved, and the amounts at stake, I consider
scale C to be appropriate. There is no basis for a punitive scale (attorney
and client) in the absence of evidence of gross misconduct or bad faith,
although the conduct of the IDT in delaying so long is troubling .
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[51) In the premise, I make the following order:
Order
(i) The applicant's application for condonation in respect of Part B of
the notice of motion is dismissed.
(ii) The applicant is to pay the first respondent's costs of the
condonation application, such costs to be on scale C as
contemplated in the Consolidated Practice Directives of the High
Court, Gauteng Division, Pretoria, including the costs of two
counsel where employed .
(iii) The remainder of the relief sought in Part B is dismissed in light
of the refusal of condonation.
FM REID
JUDGE OF THE HIGH COURT
SEATED AT GAUTENG, PRETORIA
Date of hearing:
Date of judgment:
12 February 2026
20 May 2026
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Appearances:
For the applicant: Adv J Mnisi (with Adv B Ledwaba)
Instructed by: Sibanda Bukhosi Attorneys Inc.
For the first respondent: Adv Madonsela SC
Instructed by: Strauss Daly Attorneys