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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION MAHIKENG
CASE NO: 4254/2025 & 3326/2025
In the consolidated review applications between:
CASE NO: 4254/2025
TSHENOLO WASTE (PTY) LTD APPLICANT
And
MEC FOR HEALTH: NORTH-WEST FIRST RESPONDENT
ULTIMATE WASTE (PTY) LTD SECOND RESPONDENT
AUDITOR-GENERAL OF SA THIRD RESPONDENT
MEC FOR TREASURY: NORTH-WEST FOURTH RESPONDENT
PROGRESSIVE PROJECTS ADMINISTRATION FIFTH RESPONDENT
LIMPOPO SUPPLEMENTS TRADERS SIXTH RESPONDENT
MAKHATHINI MEDICAL WASTE (PTY)LTD SEVENTH RESPONDENT
SIYABONGA INDUSTRIAL SERVICES (PTY) LTD EIGHTH RESPONDENT
Reportable: YES
Circulate to Judges: YES
Circulate to Magistrates: NO
Circulate to Regional Magistrates: NO
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SCELO BUSINESS CONSULTANCY (PTY) LTD NINTH RESPONDENT
PLEASSANT MAPHOKA (PTY) LTD TENTH RESPONDENT
VSL GENERAL TRADING (PTY) LTD ELEVENTH RESPONDENT
MAHLABANA WASTE (PTY) LTD TWELFTH RESPONDENT
MASA WASTE MANAGEMENT (PTY) LTD THIRTEENTH RESPONDENT
PHUTHING MEDICAL WASTE
MANAGEMENT (PTY) LTD FOURTEENTH RESPONDENT
MAMPURU WASTE MANAGEMENT CC FIFTEENTH RESPONDENT
BUHLE WASTE (PTY) LTD SIXTEENTH RESPONDENT
KLT MEDICAL AND PROJECTS SEVENTEENTH RESPONDENT
COMPASS MEDICAL WASTE SERVICES EIGHTEENTH RESPONDENT
AND
CASE NO 3326/2025
TSHENOLO WASTE (PTY) LTD APPLICANT
and
MEC FOR HEALTH: NORTH WEST FIRST RESPONDENT
AUDITOR-GENERAL OF SA SECOND RESPONDENT
MEC FOR TREASURY: NORTH-WEST THIRD RESPONDENT
ULTIMATE WASTE MANAGEMENT (PTY) LTD FOURTH RESPONDENT
BUHLE WASTE (PTY) LTD FIFTH RESPONDENT
MAHLABANA WASTE (PTY) LTD SIXTH RESPONDENT
PHUTHING MEDICAL WASTE SEVENTH RESPONDENT
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pursuant to the interim interdict that had earlier stayed the implementation of the four-
year award pending these review proceedings.
[4] The third application is an interlocutory application brought by Ultimate Waste
in terms of Uniform Rule 6(5)( g), to refer to oral evidence the question whether two
documents emanating, on their face, from Absa Bank Limited an overdraft facility letter
dated 21 December 2023 and a vehicle and asset finance facility letter dated 18
December 2019, which the applicant submitted with its bid, are authentic and genuine
and sufficient to meet the bid requirements. This application was launched pursuant
to the order I granted, by agreement between the parties, on 19 January 2026, in terms
of which the M EC was directed to d eliver the applicant’s complete bid documents to
Ultimate Waste, and Ultimate Waste was given leave either to file a further affidavit or
to apply for a referral to oral evidence on that discrete issue.
[5] By my order of 19 January 2026 the two review applications were consolidated
for hearing. I heard argument in open court on 19 January 2026 and, after the filing of
the further affidavits and heads of argument, virtually on 26 and 27 February 2026.
Adv K Tsatsawane SC appeared for Tshenolo Waste; Adv L Montsho-Moloisane SC
with Adv G I Mothibi for the first and fourth respondents (MECs Health and Treasury
respectively); and Adv L J Morison SC with Adv A Laher for Ultimate Waste. I am
indebted to all counsel for their submissions.
BACKGROUND AND COMMON CAUSE FACTS
[6] The applicant (Tshenolo) is the incumbent service provider. It has rendered the
healthcare risk waste service to the Department under an expired tender, latterly on a
month-to-month basis, and it renders comparable services to a number of other organs
of state in several provinces. Ultimate Waste is the entity to which the impugned four-
year tender was awarded.
[7] Tender NWDOH 24/2024 was advertised on or about 12 November 2024. The
[7] Tender NWDOH 24/2024 was advertised on or about 12 November 2024. The
closing date for the submission of bids was 9 December 2024. Sixteen bids were
received. The bid validity period was 90 days, which on the respondents’ own version
expired on or about 9 March 2025. On 10 February 2025 the first respondent
addressed a request for an extension of the validity period by 30 days, to 9 April 2025,
to allow for the finalisation of the evaluation and adjudication.
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[8] Before the award was made, the first respondent referred the procurement to
its Provincial Internal Audit (“the PIA”) for a pre-award review. On 7 April 2025 the PIA
furnished a report. The PIA raised a series of material concerns, including that: (a) ten
of the sixteen bids were eliminated for failing the bidder requirements, four (including
the applicant) for failing functionality, one was eliminated after “possible fraudulent
issues” and one was recommended but with concerns; (b) the project plan reflected a
three-year contract for some R200 million whereas the advertisement reflected four
years; (c) the bid validity period had been incorrectly calculated; and, importantly, (d)
“the extension of the validity period was not accepted by all bidders as r equired”, six
of the bidders having failed to respond.
[9] Notwithstanding those findings, on 8 April 2025 the first respondent appointed
Ultimate Waste, and the contract was signed on or about 15 April 2025. The applicant’s
bid had been eliminated at the functionality stage on the basis that it failed to score
the minimum functionality points; the bid evaluation committee having allocated it zero
points for financial capacity on the footing that its overdraft facility documentation was
older than three months.
[10] On 30 May 2025 Maodi AJ granted an interim interdict (Part A) restraining the
first and second respondents (The MEC and Ultimate Waste ) from implementing the
award pending the determination of Part B, the review now before me. Reasons were
furnished on 13 August 2025. In the related application under case number 3326/2025,
Tsautse AJ struck Part A from the roll for lack of urgency on 5 and 11 September 2025,
with costs. On 19 January 2026 I consolidated the two matters, directed the production
of the applicant’s complete bid documents and made provision for the interlocutory
application that followed.
THE ISSUES
[11] Three questions fall to be decided. First, whether Ultimate Waste’s interlocutory
[11] Three questions fall to be decided. First, whether Ultimate Waste’s interlocutory
application for a referral to oral evidence should succeed. Second, whether the
decision to reject the applicant’s bid and to award Tender NWDOH 24/2024 to Ultimate
Waste falls to be reviewed and set aside and, if so, what the just and equitable remedy
is. Third, what consequential and ancillary relief, including any relief under the
Prevention and Combating of Corrupt Activities Act 12 of 2004 (“PRECCA”), and what
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costs orders, ought to follow. It is convenient to deal with the interlocutory application
first, because Ultimate Waste contended that, if granted, it disposes of the reviews.
ULTIMATE WASTE’S INTERLOCUTORY APPLICATION TO REFER THE
REVIEW TO ORAL EVIDENCE
[12] Ultimate Waste’s case on the referral may be shortly stated. It contends that
the applicant’s two Absa documents are “not genuine” and “fraudulent”; that the
overdraft letter bears an internal inconsistency (it was approved on 21 December 2023
but stipulates a next review date of 30 December 2021); that the vehicle and asset
finance letter, though addressed to the applicant, records the facility as having been
granted to an unrelated entity, “Pegasus Group (Pty) Ltd”; and that the authenticity of
these documents is a genuine, far-reaching dispute of fact which cannot be resolved
on the papers and must be referred to oral evidence. It relied on Mamadi2, Wallach3,
Wightman4 and the Plascon-Evans5 rule.
[13] The applicable principles are not in dispute. A court may, under Rule 6(5)( g),
refer a matter to oral evidence where the application cannot properly be decided on
affidavit and there is a genuine dispute of fact that is material to the relief. As the
Constitutional Court reaffirmed in Mamadi, where, in a Rule 53 review, genuine, far -
reaching and fundamental disputes of fact emerge which cannot be resolved on the
Plascon-Evans approach, the proper course is generally a referral to oral evidence
rather than a dismissal. But the converse is equally true: a referral is neither necessary
nor appropriate where the dispute sought to be ventilated is not genuine or is not
material to the outcome.
[14] I am not persuaded that a referral is warranted, for three reasons. First, the
dispute Ultimate Waste seeks to ventilate is not genuine in the Wightman sense.
Ultimate Waste does not allege, on personal knowledge or on any evidential basis,
that Absa did not issue the documents. Its case rises no higher than that the
that Absa did not issue the documents. Its case rises no higher than that the
2 Mamadi and Another v Premier, Limpopo Province and Others [2022] ZACC 26; 2024 (1) SA 1 (CC)
at paras 42–45.
3 Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A) at 263H.
4 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371
(SCA) at para 13.
5 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E–635C.
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documents are “problematic” and “do not appear to be genuine” because their authors
have not filed confirmatory affidavits. An internal review -date inconsistency on a
bank’s pro forma letter, and the fact that an asset -finance letter addressed to the
applicant references a related financing vehicle, do not, without more, establish that
the documents did not emanate from the bank. That is the “fog” against which the
Supreme Court of Appeal cautioned in Wightman.
[15] Second, and decisively, the authenticity of the applicant’s financial documents
is not material to the reviews. The MEC did not reject the applicant’s bid on the ground
that its documents were not genuine. It rejected the bid on the entirely different ground
that the overdraft documentation was older than three months. Neither the MEC nor
Ultimate Waste challenged the authenticity of the applicant’s documents in their
answering affidavits in the main reviews. The applicant’s entitlement to relief does not
depend on proving that its documents are authentic; it depends on whether the
impugned decisions are lawful. As I explain below, the applicant has established
grounds of review wholly unrelated to the authenticity of its Absa documents.
[16] Third, a respondent who genuinely believed that the reviews could not be
decided on the papers would have asked that the reviews be dismissed under Rule
6(5)(g); Ultimate Waste did not. Its election to seek only a referral of a discrete,
immaterial issue is, as the applicant submitted, consistent with a strategy to delay the
final determination of reviews while it continues to perform under an award that is
under challenge. The referral would not advance the just and expeditious decision of
the matter contemplated by Rule 6(5)(g); it would frustrate it.
[17] For these reasons the interlocutory application falls to be dismissed.
THE REVIEW APPLICATIONS: LEGAL FRAMEWORK
[18] Section 217(1) of the Constitution requires that an organ of state which
[18] Section 217(1) of the Constitution requires that an organ of state which
contracts for goods or services must do so in accordance with a system which is fair,
equitable, transparent, competitive and cost -effective.6 The award of a tender is
administrative action and is reviewable under the Promotion of Administrative Justice
6 Section 217(1) of the Constitution of the Republic of South Africa, 1996.
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Act 3 of 2000 (“PAJA”). 7 As the Constitutional Court emphasised in Allpay, the
establishment of a single ground of review is sufficient; once a ground of review is
established the conduct must be declared unlawful under section 172(1)( a) of the
Constitution, and the consequences are then addressed in a just and equitable order
under section 172(1)( b).8 Procedural requirements may not be subordinated to a
supposed inevitability of outcome, and deviations from a fair process “may themselves
all too often be symptoms of corruption or maladministration in the process”.
FIRST GROUND: AWARD AFTER EXPIRY OF THE TENDER VALIDITY PERIOD
[19] The tender validity period is the period within which the organ of state must
award or cancel the tender. If a tender is not awarded within its validity period, the
process comes to an end and there are no longer valid bids capable of acceptance.
An organ of state may extend the validity period, but only by timeously requesting and
obtaining the consent of all the participating bidders before the expiry of the period.
These principles are settled. 9 They are reinforced by the applicable Provincial
Treasury Instruction Note 1 of 2022/23, para 5.6, which provides that a bid may be
deemed extended only if all bidders have accepted the request to extend.
[20] On the respondents’ own version, and on the findings of their own Provincial
Internal Audit, the request to extend the validity period was not accepted by all bidders,
six bidders did not respond. On the orthodox approach in Takubiza, the absence of
consent from all participating bidders means the process came to an end, and the
subsequent award was unlawful.
[21] The respondents resisted this conclusion. They relied on Aventino,10 Aurecon11
7 Section 6(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), Millennium Waste
Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province and Others [2007] ZASCA 165;
2008 (2) SA 481 (SCA) para 4.
2008 (2) SA 481 (SCA) para 4.
8 AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African
Social Security Agency and Others [2013] ZACC 42; 2014 (1) SA 604 (CC) paras 23–27 and 40.
9 City of Ekurhuleni Metropolitan Municipality v Takubiza Trading & Projects CC and Others [2022]
ZASCA 82; 2023 (1) SA 44 (SCA) paras 11–13; Joubert Galpin Searle Inc and Others v Road Accident
Fund and Others [2014] ZAECPEHC 19; 2014 (4) SA 148 (ECP).
10 Aventino Ecotroopers Joint Venture and Others v MEC for the Department of Roads and Transport,
Gauteng Province and Others [2025] ZASCA 32; 2025 (4) SA 419 (SCA).
11 Aurecon South Africa (Pty) Ltd v City of Cape Town [2015] ZASCA 209; 2016 (2) SA 199 (SCA); and
on appeal City of Cape Town v Aurecon South Africa (Pty) Ltd [2017] ZACC 5; 2017 (4) SA 223 (CC).
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and Wattpower,12 for the proposition that there is no purpose in seeking an extension
from bidders who have already been eliminated, and that a supply -chain regime may
treat non-responsive bidders as excluded. They also pointed to the recent decision in
Buhle Waste,13 in which a medical waste tender survived challenge because valid,
consented extensions had been obtained.
[22] There is force in the submission that the validity-period ground is not, on these
authorities, free from difficulty. In Aventino the exclusionary regime was expressly
provided for in the supply -chain management policy, whereas in the present matter
the respondents themselves accepted that the Provincial Treasury Instruction Note is
“not clear” on the treatment of non-responsive bidders, and no equivalent exclusionary
stipulation was placed before me. In Buhle Waste the extensions were consented to;
here they were not. I am, on balance, satisfied that the applicant has the better of the
argument on this ground. I need not, however, rest my decision on it alone, because
the second and third grounds are, in my view, dispositive and place the matter beyond
doubt.
SECOND GROUND: THE UNLAWFUL DISQUALIFICATION OF THE
APPLICANT’S BID
[23] Bidders were required to demonstrate financial capacity to self -fund the
execution of the tender by submitting either stamped bank statements not older than
three months or proof of an overdraft facility. The applicant submitted proof of overdraft
facilities exceeding the prescribed amount. It was nonetheless allocated zero points
and eliminated, the bid evaluation committee having resolved, on internal legal advice,
that th e “not older than three months” qualification applicable to bank statements
applied equally to overdraft facilities.
[24] That reasoning is unlawful. The committee’s own minutes, annexed to the
MEC’s answering affidavit, record that the “overdraft facility point was not explicit nor
MEC’s answering affidavit, record that the “overdraft facility point was not explicit nor
require a statement and it put the committee on the predicament to evaluate the
requirement o f the bidder”. The invitation to bid did not stipulate that an overdraft
12 Wattpower Solutions CC v Transnet SOC Ltd [2022] 1 All SA 892 (KZD) para 38.
13 MEC for Health: Gauteng Province and Others v Buhle Waste (Pty) Ltd [2025] ZASCA 102 (15 July
2025), in which the Supreme Court of Appeal upheld a series of validity -period extensions to which all
subsisting bidders had in fact consented.
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facility had to be “not older than three months”, nor that the requirement applicable to
bank statements applied to overdraft facilities. To introduce such a requirement during
evaluation, and to apply it to eliminate the applicant without it ever having b een
communicated to bidders, rendered the process neither fair nor transparent and
offended section 217 of the Constitution.14
[25] The point is underscored by the fact that the MEC has since amended the
requirement in a subsequent tender to spell out, in terms, what proof of an overdraft
facility entails. That the requirement had to be clarified confirms that it was not clear
when it was used to disqualify the applicant. On this ground alone, the rejection of the
applicant’s bid falls to be reviewed and set aside.
THIRD GROUND: ULTIMATE WASTE OUGHT TO HAVE BEEN DISQUALIFIED
FRAUDULENT AND NON-GENUINE DOCUMENTS
[26] The most serious ground concerns Ultimate Waste’s own bid. The applicant
established, and it is in substance common cause, that two reference letters submitted
by Ultimate Waste in support of the experience component of its bid purportedly from
Unjani Clinic and from Sterling Hospital, both dated 1 October 2019 , are not genuine
and authentic.
[27] The letters are, tellingly, in materially identical terms and both refer to “Sterling
Hospital”. The Chief Executive Officer of Unjani Clinics NPC has confirmed, in writing,
that the document attributed to Unjani Clinic “has not been prepared by Unjani Cl inic
NPC and does not appear to be legitimate”; that Unjani does not use Ultimate Waste’s
services and has never appointed it; and that the Welkom Clinic was not even
operational in 2019, when the letter is dated. The letter attributed to Sterling Hosp ital
is no better: Sterling Hospital, on its own public record, only commenced operations in
2022 and could not have appointed Ultimate Waste with effect from 1 November 2019.
Of the seven references on which Ultimate Waste relied, only three confirmed its
Of the seven references on which Ultimate Waste relied, only three confirmed its
claimed experience.
[28] The submission of fraudulent or non -genuine documents in a bid is, on any
approach, fatal. It is destructive of the fairness, integrity and competitiveness which
14 AllPay (above) paras 23–27; and see Millennium Waste Management (above), on the unfairness of
disqualification for non-compliance with a requirement not clearly imposed.
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section 217 demands, and it ought to have resulted in Ultimate Waste’s
disqualification. A bid procured or advanced by fraud cannot stand: fraus omnia
corrumpit fraud unravels everything. Our courts have repeatedly recognised that
fraudulent or dishonest conduct in a tender process stands on an entirely different
footing from bona fide administrative error, and attracts consequences that mere
negligence does not.15
[29] The significance of this ground is heightened by the position Ultimate Waste
itself adopted. In support of its interlocutory application, Ultimate Waste contended, as
a matter of principle, that the submission of documents which “are fraudulent and not
authentic and genuine” is destructive of a bid and warrants disqualification, and that if
such documents are demonstrated, the bidder’s case “must fail”. In its heads of
argument on the referral, Ultimate Waste submitted that, if a bidder’s documents are
shown to be problematic and not genuine, “then [that bidder’s] application must fail”.
That submission is a concession of the governing legal principle. It cuts both ways.
Ultimate Waste cannot invoke the fatal consequences of non -genuine documents
against the applicant while resisting the identical consequence for its own
demonstrably non-genuine reference letters. On Ultimate Waste’s own argument, its
bid was liable to disqualification.
[30] It follows that, far from being a candidate for the award, Ultimate Waste ought
never to have been awarded the tender. The MEC, once apprised of these facts, was
under a duty to act; an organ of state may not sit by while an award tainted by illegality
stands.16 Its persistence in opposing the review, and its failure to place before the
court its response to the adverse findings of its own Provincial Internal Audit, are
matters I take into account below.
[31] Any one of the second and third grounds is sufficient to vitiate the award. Taken
together they are overwhelming. The decision to reject the applicant’s bid and to award
together they are overwhelming. The decision to reject the applicant’s bid and to award
15 Transnet Ltd v Sechaba Photoscan (Pty) Ltd [2004] ZASCA 24; 2005 (1) SA 299 (SCA); Esorfranki
Pipelines (Pty) Ltd v Mopani District Municipality [2014] ZASCA 21, and on the principle that liability
follows fraud, Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality [2022] ZACC 41; 2023 (2) SA
31 (CC); compare Steenkamp NO v Provincial Tender Board, Eastern Cape [2006] ZACC 16; 2007 (3)
SA 121 (CC).
16 State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd [2017] ZACC 40; 2018 (2)
SA 23 (CC) paras 37–41.
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Tender NWDOH 24/2024 to Ultimate Waste must be declared unlawful and set aside
under section 172(1)(a) of the Constitution and section 6 of PAJA.
REMEDY
[32] The applicant sought substitution an order awarding the tender to it alternatively
remittal. The discretionary choice of a just and equitable remedy under section
172(1)(b) of the Constitution and section 8 of PAJA arises only after, and follows upon,
the finding of invalidity.17 The remedial power is generous and wide, bounded only by
considerations of justice and equity.18
[33] Substitution remains the exception, not the rule. The ordinary course is to remit,
because a court is generally slow to assume a discretion entrusted by statute to
another functionary.19 In Trencon the Constitutional Court held that the two factors that
weigh most heavily are whether the court is in as good a position as the administrator
to make the decision and whether the outcome is a foregone conclusion; these are
considered cumulatively, togeth er with other relevant factors such as delay, bias or
incompetence, the ultimate question being what is just and equitable.20
[34] I have concluded that substitution is not appropriate here, notwithstanding the
applicant’s strong case. The vice in this procurement was not confined to the award;
it infected the process as a whole. The Provincial Internal Audit identified pervasive
irregularities in the confirmation of budget, the contract duration, the calculation and
extension of the validity period, the verification of experience and the assessment of
financial capacity affecting multiple bidders. In those circumstances the court is not in
as good a position as a properly constituted evaluation, lawfully conducted, to
determine who should be awarded the tender, and the outcome cannot be said to be
17 Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others [2010]
ZACC 26; 2011 (4) SA 113 (CC) paras 83–84.
ZACC 26; 2011 (4) SA 113 (CC) paras 83–84.
18 Electoral Commission v Mhlope and Others [2016] ZACC 15; 2016 (5) SA 1 (CC) para 132; AllPay
(above).
19 Johannesburg City Council v Administrator, Transvaal 1969 (2) SA 72 (T); Premier, Mpumalanga and
Another v Executive Committee, Association of State -Aided Schools, Eastern Transvaal [1998] ZACC
20; 1999 (2) SA 91 (CC) para 50.
20 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another
[2015] ZACC 22; 2015 (5) SA 245 (CC) paras 47–49.
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a foregone conclusion. To award the tender to the applicant by substitution would be
to build a fresh award on a foundation that has been shown to be unsound.
[35] The just and equitable course is to set aside the award and to direct the first
respondent to commence a fresh tender process, de novo, conducted lawfully and
transparently. Because the service in issue is the removal of hazardous healthcare
risk waste from public hospitals, an interruption would imperil public health. To avoid
that, and to preserve continuity pending a lawful award, the first respondent must
continue to utilise the services of the applicant on a month -to-month basis under its
existing arrangement until the new process is completed. This balances the vindication
of legality against the practical necessity of an uninterrupted essential service, as the
just and equitable jurisdiction permits.21
THE APPLICATION UNDER CASE NUMBER 3326/2025
[36] The relief in case number 3326/2025 was directed at restraining the
implementation of the four-year award and at the closed, month-to-month process the
MEC adopted after the interim interdict. Given the setting aside of the four-year award
and the interim arrangements I have directed in favour of the applicant pending a fresh
process, the review under case number 3326/2025 succeeds to the extent reflected in
the order. The interdictory relief is, in substance, subsumed in and rendered moot by
the relief granted in the consolidated reviews.
REFERRAL UNDER THE PREVENTION AND COMBATING OF CORRUPT
ACTIVITIES ACT
[37] This matter cannot end with the setting aside of the award. The court has found
that documents which are not genuine and authentic were used in a public tender for
a contract of very substantial value, and Ultimate Waste itself has characterised the
use of such documents as “fraudulent”. The forgery or uttering of forged documents,
and fraud, in connection with a public procurement engage the criminal law and the
and fraud, in connection with a public procurement engage the criminal law and the
Prevention and Combating of Corrupt Activities Act 12 of 2004 (“PRECCA”).
21Section 172(1)(b) of the Constitution of the Republic of South Africa,1996; AllPay (remedy) and Gijima
(above).
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[38] Section 34 of PRECCA imposes a duty on any person who holds a position of
authority which includes the accounting officer or accounting authority of a department
who knows or ought reasonably to have known or suspected that another person has
committed an offence of theft, fraud, extortion, forgery or uttering a forged document,
or a corruption offence, involving an amount of R100 000 or more, to report that
knowledge or suspicion to a police official of the Directorate for Priority Crime
Investigation.22 The value of this tender is well in excess of that threshold. The
accounting authority of the first respondent, being seized of the facts found in this
judgment, is obliged to comply with that duty.
[39] PRECCA also establishes the Register for Tender Defaulters, on which a court
convicting a person of an offence under section 12 or section 13 of PRECCA may
order the convicted person’s particulars to be endorsed, with the consequence that
the defaulter may be excluded from public contracting for a determined period. 23 The
National Treasury, in turn, maintains the Database of Restricted Suppliers, on which
a supplier that has committed fraud or misrepresented facts may be restricted from
doing business with the State.
[40] Where a court, in the course of a review, becomes aware of apparent tender
fraud, it is both entitled and, consistent with its constitutional duty to uphold the rule of
law, well advised to direct that the matter be referred to the appropriate authorities .
That course was followed in Zinyana,24 where the court directed the persons
concerned to comply with their section 34 duties, referred the matter to the Directorate
for Priority Crime Investigation, and directed the registrar to transmit the judgment to
the relevant authorities. The courts are enjoined to be vigilant against corruption in
public procurement, and to play their part in ensuring that apparent wrongdoing is
public procurement, and to play their part in ensuring that apparent wrongdoing is
22 Section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004.
23 Sections 28 to 31 of PRECCA. This is distinct from the Database of Restricted Suppliers maintained
by the National Treasury under the public finance legislation, on which suppliers who have, inter alia,
committed fraud or misrepresented facts may be restricted.
24 Zinyana v Smith and Others [2023] ZAGPJHC 827; 2023 (2) SACR 532 (GJ ) para 33, in which the
court directed the persons in positions of authority to comply with their reporting duties under section
34 of PRECCA, referred the matter to the Directorate for Priority Crime Investigation, and directed the
registrar to transmit the judgment.
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investigated by those charged with that function.25
[41] It is not for this Court to make any finding of criminal liability; that is the function
of the prosecuting authority and, ultimately, of a criminal court. What this Court can
and does do is to direct that the matter be placed before those who are charged with
investigating and deciding whether offences have been committed and whether the
second respondent should be restricted or listed. The order I make below gives effect
to that, and to the section 34 duty of the accounting authority of the first respondent.
COSTS
[42] Costs follow the result. The applicant has succeeded in both reviews and in
resisting the interlocutory application. The first respondent and Ultimate Waste
opposed the reviews unsuccessfully; the award was tainted by serious irregularity and
by the use of non-genuine documents. It is just that they bear the costs of Part B jointly
and severally, on the party-and-party scale, including the costs of two counsel where
so employed, on scale C. Ultimate Waste, having brought and lost the interlocutory
application, must pay the applicant’s costs occasioned by it on the same basis, save
for the costs occasioned by the postponement of 19 January 2026, which were the
subject of a separate arrangement and as to which each party should bear its own
costs.
ORDER
In the consolidated review applications under case numbers 4254/2025 and
3326/2025, I make the following order:
1. The review applications under case numbers 4254/2025 and 3326/2025
succeed.
2. The first respondent’s decision to reject the applicant’s bid, and to award
Tender NWDOH 24/2024 to the second respondent (Ultimate Waste (Pty) Ltd),
is reviewed, declared unlawful and set aside.
25 Section 165 of the Constitution, on the judicial authority and the obligation of organs of state to assist
and protect the courts; and AllPay (above) para 27, on deviations from process as possible symptoms
of corruption.
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3. The first respondent is directed to commence a new tender process ( de novo)
for the procurement of the services that are the subject of Tender NWDOH
24/2024.
4. Pending the re-advertisement, the commencement of the new tender process
and the award of a new tender, the first respondent is directed to utilise the
services of the applicant (Tshenolo Waste (Pty) Ltd) and to extend the
applicant’s month-to-month contract awarded under the expired tender, so as
to ensure the uninterrupted removal and disposal of healthcare risk waste
promptly.
5. The accounting authority of the first respondent is directed, within 15 days of
this order, to report the tender fraud and/or misrepresentation of information
arising from the second respondent’s use of documents which are not genuine
and authentic, as fo und in this judgment, to the relevant authorities, including
the accounting authority of the MEC for Treasury, North West Province, and the
division or unit of the National Treasury responsible for processing complaints,
investigating, and determining wh ether the second respondent ought to be
restricted on the Database of Restricted Suppliers and/or endorsed on the
Register for Tender Defaulters for contravening the applicable legislative and
regulatory framework, including but not limited to the relevant provisions of the
Prevention and Combating of Corrupt Activities Act 12 of 2004.
6. The accounting authority of the first respondent is further directed, within 15
days of this order and in compliance with its duty under section 34 of the
Prevention and Combating of Corrupt Activities Act 12 of 2004, to report the
matter to the Directorat e for Priority Crime Investigation of the South African
Police Service to investigate and, if cause exists, to refer the matter to the
relevant Director of Public Prosecutions to consider and decide whether a prima
facie contravention of the applicable leg islative framework, including but not
facie contravention of the applicable leg islative framework, including but not
limited to the relevant provisions of the Prevention and Combating of Corrupt
Activities Act 12 of 2004, has been committed and whether a prosecution is
warranted.
7. The Registrar of this Court is directed to submit a copy of this judgment,
together with the full transcript of the proceedings of 26 February 2026, to the
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National Treasury, to the North West Provincial and National Commissioners
of the South African Police Service, and to the Provincial and National Directors
of Public Prosecutions respectively.
8. The interlocutory application brought by the second respondent (Ultimate
Waste (Pty) Ltd) to refer certain issues in the review applications to oral
evidence in terms of Uniform Rule 6(5)(g) is dismissed.
9. The costs of Part B in the review application under case number 4254/2025
and in the review application under case number 3326/2025 shall be borne by
the MEC for Health, North West Province (the first respondent) and Ultimate
Waste (Pty) Ltd, jointly and severally, the one paying the other to be absolved,
on the party -and-party basis, including the costs of two counsel where so
employed, on scale C.
10. The second respondent (Ultimate Waste (Pty) Ltd) shall pay the applicant’s
costs in the interlocutory application on the party-and-party basis, including the
costs of two counsel where so employed, on scale C, excluding the costs
occasioned by the postponement of the matter on 19 January 2026.
11. Each party shall pay its own costs occasioned by the postponement of the
matter on 19 January 2026.
_____________ _______
M MORGAN
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTHWEST DIVISION, MAHIKENG
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Heard on: 19 January 2026 (open court) and 26 & 27 February 2026 (Virtually).
Judgment delivered on: Friday, 5 June 2026
Appearances on 19 January 2026 and 26 and 27 February 2026.
Counsel for Tshenolo Waste (Pty) Ltd (Applicant in the review applications Case
No: 4254/2025 & Case No: 3326 and the respondent in the interlocutory application):
Adv K Tsatsawane SC
Instructed by: Weavind & Weavind Inc
Email: thato@weavind.co.za / ken@law.co.za
Counsel for the MEC for Health North West Province (First Respondent in review
applications and interlocutory application Case No: 4254/2025 & Case No: 3326) and
MEC for Treasury (Forth Respondent in the interlocutory application):
Adv L Montsho – Moloisane SC with Adv G I Mothibi
Instructed by: State Attorney, Mafikeng
Email: Maphaka@justice.gov.za / lesego@law.co.za
*Both the MEC for Health and MEC for Treasury North West Province filed a notice to
abide in the interlocutory application brought by Ultimate Waste (Pty) Ltd.
Counsel for Ultimate Waste (Pty) Ltd (the Second Respondent in the review
applications Case No: 4254/2025 & Case No: 3326 and Applicant in the interlocutory
application):
Adv L J Morison SC with Adv A Laher
Instructed by: Amod and van Schalk Attorneys Inc. C/O: Nienaber & Wissing Attorneys
Email: riaz@avsattorneys.co.za / zeenit@avsattorneys.co.za /
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No appearance for the Seventh Respondent (Phuting Medical Waste Management
(Pty) Ltd) in review applications and interlocutory applications before me, instead it
filed a notice to abide dated 24 February 2026.
*The other parties cited in the applications whose appearance is not recorded herein,
elected not deliver opposing paper(s) or notices to abide and did not appoint legal
representatives or counsel to appear on their behalf on the set down dates.