IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
Not reportable
Case no: 5278/2024
FREE STATE PROVINCIAL GOVERNMENT: DEPARTMENT OF
COMMUNITY SAFETY, ROADS AND TRANSPORT APPLICANT
and
ITUMELE BUS LINES (PTY) LTD
MINISTER OF TRANSPORT
MINISTER OF FINANCE
AUDITOR-GENERAL OF SOUTH AFRICA
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
Neutral citation: FS Department of Community Safety, Roads and Transport v ltumele Bus
Lines (Pty) Ltd and Others (5278/2024) [2026] ZAFSHC 300 (18 May 2026)
Coram:
Heard:
Daffue et Mhlambi JJ
17 November 2025
Delivered: These reasons were handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is deemed
to be 14h30 on 18 May 2026.
Summary: Self-review application by Provincial Government - Provincial Government
failed to file replying affidavit and heads of argument and to instruct legal practitioner to
appear on its behalf to present oral argument - unreasonable delay - failure to join the
relevant Municipality in whose area bus transport services are rendered - although_ points
in limine valid, the court dismissed the application on the merits.
Daffue J (Mhlambi J concurring)
Introduction
REASONS
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[1] This application concerned a challenge by a provincial government of the lawfulness of
an extension on 1 October 2019 of a contract between it and a service provider for the delivery
of a public transport service. The matter also raised the enforcement of the rule of law insofar
as there was a significant delay in bringing the challenge to court.
[2] On 17 November 2025 the following order was made after the events occurring on that
date as explained hereafter:
'1. The self-review is dismissed with costs inclusive of the costs of two counsel on scale C and B
respectively.'
[3] It is recorded that this application and review application 5090/2023 by Zeus Shuttles
and Coaches (Pty) Ltd and Lungi and Sons Services (Pty) Ltd were set down before the same
two judges with the leave of the Acting Judge President as these two applications are
interlinked . We decided that our reasons for dismissing the self-review application shall be
provided simultaneously with our judgment in application 5090/2023.
The parties
[4] The applicant was cited as the Free State Provincial Government: Department of
Community Safety, Roads and Transport (the Department). The first respondent is ltumele Bus
Lines (Pty) Ltd (IBL), a provider of public transport services to members of the public between
Bloemfontein and its surrounds. The Ministers of Transport and Finance were cited as second
and third respondents and the Auditor-General of South Africa as the fourth respondent. The
last-mentioned three respondents have not played any role in the application. They did not
oppose the application and failed to file any answering affidavits or heads of argument.
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The relief sought
[SJ Save for seeking condonation for the delay in launching the review application, the
Department applied for the following substantive relief in accordance with its application for
self-review:
(a) that the extension of the contract between the Department and IBL on 1 October 2019
in respect of tenders Vf20282/98, VT20283/98, VT20284/98 and Vf20285/98 (the extended
contract) contrary to the provisions of the Public Finance Management Act 1 of 1999 (PFMA)
and s 217 of the Constitution of the Republic of South Africa be declared invalid and set aside;
(b) that it be declared that the Department is not liable for any payments to IBL from 1
November 2019 onwards and in the event of payments having been effected from 1 November
2019, that these be set off against what the court may determine under the rubric of just and
equitable remedy for bus road transportation services provided; and
(c) that IBL file independent audited statements of expenses to inter a/ia show the income
received and the net profit earned from the extended contract, whereupon the court would
eventually be requested to determine a just and equitable remedy.
[6] It is now trite that an organ of state cannot rely on the principles enunciated in the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) but is bound to rely on legality
reviews. Unlike in the case of PAJA, n9 time limit is placed on legality reviews. No formal and
explicit application for condonation is required in legality reviews as stated in Buffalo City
Metropolitan Municipality v Asia Construction (Pty) Limited, 1 although the reasonableness of
the delay must still be considered.
The proceedings on 17 November 2025.
[7] This application and application 5090/2023 were set down for hearing on 17 November
2025. IBL's counsel filed extensive heads of argument in accordance with the Practice
Directives of this Court. The Department did not file a replying affidavit and also failed to file
heads of argument. When the application was called, there was no appearance for the
Department. We were informed by IBL's senior counsel that his attorney had been in contact
with Ms Engelbrecht of the State Attorney's office who had advised her that the State Attorney
did not hold any instructions to appoint counsel to argue the application. In the absence of any
appearance on behalf of the Department, ISL sought the dismissal of the self-review application
1 Buffalo City Metropolitan Municipality v Asia Construction (Pty) Limited [2019] ZACC 15; 2019 (6) BCLR 661
(CC); 2019 (4) SA 331 (CC) para 51.
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with costs, inclusive of the costs of two counsel on scale C and B respectively. Such an order
was made. We decided not to provide reasons at the time, but to do so when we deliver
judgment in application 5090/2023. Having said this, I shall deal with two points in limine raised
by IBL, to wit the alleged unreasonable delay to launch the self-review proceedings and the
non-joinder of the Mangaung Metropolitan Municipality (the Municipality) under the next
headings.
Delay
[8] Despite trying to impress upon us that the Department was doing the right thing to
challenge the legality of the extended contract , the Department's delay in bringing the
application is reprehensible. IBL has taken issue with the delay. It submitted that it was
unreasonable and that the Department should be non-suited. As mentioned, the Department
did not even bother to respond to IBL's answering affidavit. On the Department's version , it and
IBL (or its predecessors) acted unlawfully when the contract period was extended. Bearing in
mind such conclusion, the self-review application should have been brought within a
reasonable time after the Department's decision on 7 August 2003 to extend the initial contract
period. Alternatively, the application should have been brought within a reasonable period after
any of the Department's subsequent decisions to extend the contract period from time to time.
The Department failed to present a factual basis and/or reasons for the failure to institute the
self-review application prior to 16 September 2024.
[9] The last extension of the contract , on a month-to-month basis, occurred on 1 October
2019. Five years later, in September 2024, the Department caused its self-review application
to be issued. The Department failed to present a factual basis and/or reasons for the neglect
to institute the self-review application within a reasonable time.
[1 O] I accept that there is a duty on a state functionary, such as the Head of the Department
[1 O] I accept that there is a duty on a state functionary, such as the Head of the Department
(HOD), or the MEC of a particular department, to rectify unlawfulness. In Khumalo and Another
v Member of the Executive Council for Education: KwaZulu NataP. the Constitutional Court
stated that '[i]t is the duty of courts to insist that the state, in all its dealings, operates within the
confines of the law .. .'. The founding affidavit was deposed to by the HOD. Neither the MEC
2 Khu ma lo and Another v Member of the Executive Council for Education: KwaZulu Natal [2013] ZACC 49; 2014
(3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC) paras 39-52; see also State Information
Technology Agency SOC Limited v Gijima Holdings (Pty) Limited [2017] ZACC 40; 2018 (2) BCLR 240 (CC); 2018
(2) SA 23 (CC) paras 43-49.
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at the time when contract was extended, nor the present MEC filed a confirmatory affidavit in
support of the self-review application. This is not insignificant, bearing in mind the record of
decision filed in application 5090/2023, reflecting communication between the Minister of
Transport and the MEC. This has been dealt with in our judgment in that application.
[11] Notwithstanding no time limit being applicable in legality reviews, it is trite that these
reviews must be instituted without undue delay to ensure certainty and promote legality.
Cameron J stated the following in Merafong City Local Municipality v AngloGold Ashanti
Limited :3
' . .. The rule against delay in instituting review exists for good reason: to curb the potential prejudice
that would ensue if the lawfulness of the decision remains uncertain. Protracted delays could give rise
to calamitous effects. Not just for those who rely upon the decision but also for the efficient functioning
of the decision-making body itself . . . '
(12] I accept that even in the case of unreasonable delay by an organ of state, the Court may
overlook that as explained in Department of Transport and Others v Tasima (Pty) Limited4 and
consider the self-review on the merits. Notwithstanding the fact that the Constitutional Court in
Buffalo -City Metropolitan Municipality v Asia Construction (Ply) Limited5 concluded that the
decisionmaker had failed to provide a satisfactory explanation for the delay, which could not
be overlooked, the majority held that the court could not ignore the unlawfulness of the
particular contract and consequently set it aside.
(13] In my view, uncertainty has been created by the Constitutional Court in several
judgments on this topic: I respectfully agree with the dictum of Unterhalter JA, the scribe of the
unanimous judgment in Petersen and Others v South African Social Security Agency:6
'[1 O] The law that governs delay in cases of self-review under the legality principle lacks satisfactory
coherence as a result of the shifting sands that have blown through the Constitutional Court on this
matter . It is no modest endeavour to determine what settled propositions emerge from the dicta of the
Constitutional Court in Khuma/o, Gijima, Tasima, Asia Construction, Notyawa as to the discretion of a
3 Merafong City Local Municipality v AngloGold Ashanti Limited [2016] ZACC 35; 2017 (2) BCLR 182 (CC); 2017
(2) SA 211 (CC) paras 73-77; see also State Information Technology Agency SOC Limited v Gijima Holdings (Pty)
Limited [2017] ZACC 40; 2018 (2) BCLR 240 (CC); 2018 (2) SA 23 (CC) foe cit para 44.
4 Department of Transport and Others v Tasima (Pty) Limited [2016] ZACC 39; 2017 (1) BCLR 1 (CC); 2017 (2)
SA 622 (CC) paras 160-171.
5 Buffalo City Metropolitan Municipality v Asia Construction (Ply) Limited [2019] ZACC 15; 2019 (6) BCLR 661
(CC); 2019 (4) SA 331 (CC) paras 100-101.
6 Petersen and Others v South African Social Security Agency 2025 (3) SA 153 (SCA) para 10.
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court to overlook delay in this species of review . . .. '
Unterhalter JA continue to state in the same paragraph quoted just now that '[h]appily, there is
no need for this Court to undertake this task .' The same applies in casu.
[14] I refer to the principles pertaining to condonation applications mentioned in paragraph
22 of our judgment in application 5090/2023. Bearing in mind the principles referred to by both
the Constitutional Court and the Supreme Court of Appeal, I am satisfied that the delay in this
case was unreasonable. The application could and should have been dismissed for failing to
launch it within a reasonable time without even considering the merits.
Non-joinder of the Municipality
[15] Over and above the point in limine raised by IBL that the Department delayed the
launching of its application for self-review unreasonably and also failed to explain the delay, it
took a further point in limine that the Department failed to join the Municipality as a respondent.
Clearly, the Municipality is a contracting authority as contemplated in s 1 of the National Land
Transport Act 5 of 2009 (the Transport Act). The Municipality had a direct and substantial
interest in any order which the court might have made in the self-review application, should the
mont~-to-month extension of the contract between the Department and IBL be set aside as
requested by the Department in its notice of motion. In such a case the Municipality would have
to conclude either a negotiated contract in terms of s 41 of the Transport Act, or a subsidised
service contract in terms of s 42 of the Transport Act in order to provide the required passenger
bus road transportation to members of the public. This service has been provided by IBL for
decades and it is still continuing to do deliver same.
[16] At best for the applicant, the self-review application would have to be suspended until
the joinder of the Municipality in which case the applicant would have been ordered to pay
the joinder of the Municipality in which case the applicant would have been ordered to pay
IBL's wasted costs. Notwithstanding these comments, we considered the application on the
merits.
The merits of the self-review application
[17] There is no reason why we shall copy our reasoned judgment in 5090/2023 and paste
same herein. The reader is referred to paragraphs 30 to 52 of our detailed judgment from which
it will be apparent why the application for self-review was unmeritorious. Consequently , the
application was dismissed on its merits for the reasons set out herein and particularly those
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contained in application 5090/2023. The costs order was warranted due to the intricacy of the
dispute and the importance of the case.
I concur.
\
JP DAFFUE
JUDGE OF THE HIGH COURT
J J MHLAMBI
JUDGE OF THE HIGH COURT
Appearances
For the Applicant:
Instructed by:
For the First Respondent:
Instructed by:
No appearance
DJ van der Walt SC and
JS Rautenbach
Symington De Kok Attorneys
For the Second, Third and Fourth Respondents: No appearance.
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Appearances
For the Applicants:
Instructed by:
For the Second Respondent:
Instructed by:
For the First, Third and Fourth Respondents:
For the Fifth Respondent:
S Grabler SC
Peyper Attorneys
DJ van der Walt SC and
JS Rautenbach
Symington De Kok Attorneys
No appearance.
PT Masihleho - watching brief only
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