Afropulse 46 (Pty) Ltd t/a Power Stationery v Member of the Executive Council: Eastern Cape Department of Education and Others (2025/188920) [2026] ZAECMKHC 63 (19 June 2026)

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)

CASE NO: 2025-188920

In the matter between:

AFROPULSE 46 (PTY) LTD
t/a POWER STATIONERY Applicant

and

MEMBER OF THE EXECUTIVE COUNCIL: EASTERN CAPE
DEPARTMENT OF EDUCATION First Respondent

LEBONE LITHO PRINTERS (PTY) LTD Second Respondent

DSV ROAD (PTY) LTD Third Respondent

DSV CONTRACT LOGISTICS (PTY) LTD Fourth Respondent

MINISTER OF FINANCE Fifth Respondent

MINISTER OF EDUCATION Sixth Respondent

PALM MANUFACTURERS (PTY) LTD Seventh Respondent

FREEDOM STATIONERY (PTY) LTD Eight Respondent

AFRICAN PAPER PRODUCTS (PTY) LTD Ninth Respondent

GEMINI STATIONERY MANUFACTURERS (PTY) LTD Tenth Respondent

EDUSTART AFRIKA (PTY) LTD Eleventh Respondent

POWER SPINKS INVESTMENTS (PTY) LTD Twelfth Respondent

KHUMZI INVESTMENTS (PTY) LTD Thirteenth Respondent

BENTOCORP (PTY) LTD Fourteenth Respondent

JOYSPRING TRADE AND INVEST 14 (PTY) LTD Fifteenth Respondent

ANDIVECT OFFICE SUPPLIES (PTY) LTD Sixteenth Respondent

MAKWANDE MAQIYA SUPPLIERS AND SERVICES CC Seventeenth Respondent

RAPTOSCORE (PTY) LTD Eighteenth Respondent

SIMOSEC (PTY) LTD Nineteenth Respondent

REMAINING UNSUCCESSFUL BIDDERS Twentieth Respondent

JUDGMENT

POTGIETER J

INTRODUCTION

[1] Government procurement1 is a critical aspect of public administration in South Africa.
It is both economically substantial 2 and central to the delivery of goods and services to
the public. As such, it has been accorded constitutional status under section 217 3 of the
Constitution and is governed by a legal framework that promotes fairness, transparency,
accountability, and economic transformation. The legal principles governing public
procurement ensure the effective and equitable use of public resources while also
pursuing broader societal objectives, such as social justice and the redress of historic
inequalities. None of this is in issue in this matter.

[2] It is apposite to provide a brief background to the case


1 Also referred to as public procurement, can be defined as the acquisition of goods or services: cf Bolton,
The Law of Government Procurement in South Africa (2007) p1 n2 (Bolton); The New Shorter Oxford
Dictionary (1993) p. 2366. The inoperative Public Procurement Act, assented to in July 2024,
contains a similar definition. (Judgment has been reserved on 19 May 2026 by the Constitutional
Court in a challenge to the constitutionality of this Act). The court in Airports Company of South Africa
SOC Ltd v Imperial Group & Others 2020(4) SA 17 (SCA) at para 63 said that the ‘ordinary meaning
of “procure” is ”obtain” ‘.
2 The value of public sector procurement in South Africa is estimated to amount to approximately 14% of
gross domestic product (GDP) cf Bolton p3. This compares well to the average spent in the European
Union and even in the United States of America. It is predicted that the SA Government will spend
R1.5 trillion in public procurement over the next three years.
3 The section provides as follows:
‘Procurement
217. (1) When an organ of state in the national, provincial or local sphere of government, or any other
institution identified in national legislation, contracts for goods or services, it must do so in

accordance with a system which is fair, equitable, transparent, competitive and cost-effective.
(2) Subsection (1) does not prevent the organs of state or institutions referred to in that
subsection from implementing a procurement policy providing for –
(a) categories of preference in the allocation of contracts; and
(b) the protection or advancement of persons, or categories of persons, disadvantaged by
unfair discrimination.
(3) National legislation must prescribe a framework within which the policy referred to in
subsection (2) must be implemented.’

BRIEF BACKGROUND

[3] The second to fourth respondents (‘the Consortium’) have been awarded a tender
(‘the Department Tender’) in July 2023, in broad terms, to provide Project Management
Services as a Project Management Agency (‘PMA’) to the Eastern Cape Department of
Education (‘the Department’) for the acquisition and provision of learner and teacher
support material (‘LTSM’) to all the schools in the province. 4 To this end, the
Department and the Consortium concluded a Service Level Agreement (‘SLA’) 5 on 2
August 2023, which governs their contractual relationship.

[4] Pursuant to the conclusion of the SLA, the Consortium issued a public Request for
Proposals (‘RFP’) or an invitation to tender on 10 June 2025 to appropriate suppliers to
provide LTSM for schools in the province. 6 The applicant (‘Power Stationery’), an
established supplier of LTSM to the Department, responded to the RFP and advanced
through the evaluation process to the stage at which price was considered. The
Consortium subsequently informed Power Stationery in August 2025 that its tender was
unsuccessful. This prompted an investigation into that process, followed by the present
proceedings, instituted by Power Stationery on an urgent basis, to challenge the
process initiated by the Consortium and the rejection of its tender (‘non -award
decision’).

[5] The following relief is being sought in the amended notice of motion:
1. The applicant’s non -compliance with the Uniform Rules of Court relating to forms,
service, and time periods is condoned, and this application is dealt with as a matter of
urgency under Uniform Rule 6(12).
2. It is declared that the second, third, and fourth respondents’ (“ Consortium”) and first
respondent’s (“Department”) purported delegation of the powers to make procurement
decisions on behalf of or in the place of the D epartment, or to act as the Accounting
Officer of the Department, to the Consortium, is unconstitutional and unlawful.

Officer of the Department, to the Consortium, is unconstitutional and unlawful.

4 There are 4705 schools and1 733 120 learners in the province from Grades R to 12.
5 Annexure ‘KM7’ to the Consortium’s answering affidavit, Case Lines record (‘CL’) 003-128.
6 CL 001-258 – 281 annexures ‘FA6’ and ‘FA7’ to the Founding Affidavit (‘FA’).

3. It is declared that the Consortium and Department’s abdication of the procurement
obligations under section 217 of the Constitution and all of the legal and constitutional
obligations of the Department, including those contained in the Department’s Supply
Chain Management Policy and the duties of the Accounting Officer, is unconstitutional
and unlawful.
4. It is declared that the decision of the Consortium not to award the Stationery Tender
to the applicant, or not to appoint the applicant as one of the successful suppliers (“ Non-
Award Decision”) conveyed on or about 19 July 2025, is unconstitutional and unlawful
and is reviewed and set aside.
5. The costs of this application, including the costs of two counsel, are to be paid jointly
and severally by any respondents opposing it on scale C.
6. Further and/or alternative relief.

[6] The application is being opposed only by the Consortium and the first respondent,
the relevant Member of the Executive Council (‘MEC’) in the province, who is the
political head of the Department. The National Minister of Education 7 has been cited as
the sixth respondent, but (like the remaining respondents) has not entered the matter.

SUMMARY OF THE MATERIAL FACTS8

[7] In 2023, the Department issued Bid No. SCMU6 -22/23 – 00199 (being the
Department Tender). As indicated, the bid was for the appointment of a project
manager. The tender was awarded to the Consortium in April 2023, and the Consortium
subsequently concluded an SLA with the Department on 2 August 2023. The SLA is

7 In terms of Schedule 4 Part A of the Constitution, school education is a functional area of concurrent
National and Provincial legislative competence. Tertiary education is a national competency.
8 The relevant section in the applicant’s heads of argument, as well as the Consortium’s Plascon Evans
factual matrix, which was filed with the leave of the court after the conclusion of the argument, was
most helpful in the preparation of this summary.

most helpful in the preparation of this summary.
9 The title is: ‘ Standard Bidding Document: Request For Proposal From Reputably Qualified Service
Provider For Provisioning of Project Management Services, Which Shall Include Procurement,
Warehousing, Inventory Management (Furniture) And Delivery Of Both Electronic And Paper
Learning And Teaching Support Material (LTSM And ELTSM) For Period Of Three (3) Years With An
Option To Renew The Contract For A Period Not Longer Than Two (2) Years At The Descretion ( sic)
Of The Eastern Cape Department Of Education, Informed By The Budget Availability, The Need
Including The Performance Of The Service Privider (sic)’.

valid for three years with an option to renew for a further two years. All obligations under
the SLA have been fulfilled.

[8] Before the appointment of the Consortium in 2023, Power Stationery had been
awarded a tender by the Department on 6 January 2022 to supply scholastic
stationery.10 Power Stationery performed under the tender award for four academic
years, from 2022 to 2025. The Department itself procured the supplies from Power
Stationery (and other suppliers) during this time.

[9] During the above -mentioned four academic years, the Department continued to
issue orders directly to suppliers (including Power Stationery, as evidenced by the order
forms in the record)11 and to make payments to suppliers.12
[10] Power Stationery (along with others) supplied the Department with school
stationery up to the end of the 2025 academic year.13

[11] The Department terminated the tender in January 2025.14


10 Para 74 of the FA, CL 001 -56 read with ‘FA4’ a copy of the tender/ the Department’s invitation to bid
for the supply and delivery of scholastic stationery to schools in the Eastern Cape, dated 16 August
2021, issued by the Department in its own name, and ‘FA5’, CL001-192 and 001-251 (a copy of the 6
January 2022 letter of award in favour of Power Stationery, also issued by the Department).
11 Cf CL 006 -29 annexure ‘RA1’ of the replying affidavit (‘RA’) to the Department’s answering affidavit,
being purchase orders issued to Power Stationery by the Department.
12 Para. 74 of the FA, CL 001 -56. In its answering affidavit, the Department states that ‘since the
signature of the SLA’ pursuant to the Departmental Tender, the Consortium has ‘contracted goods
and services as sole supplier to the Department on a centralized basis’ (paragraph 29 of the
Department’s answering affidavit, CL 005 -11). This averment is in contention. Power Stationery has
pleaded that it had a tender with the Department to provide stationery until the 2025 academic year. It

(along with other suppliers) supplied the Department directly with stationery, not through the
Consortium as the sole supplier. After the Consortium was appointed in 2023, it appears to have
initially remained a service provider. In paragraph 69 of the Department’s answering affidavit, CL 005-
18, it is contended that Power Stationery failed to explain the earlier tender in its papers. This is
doubtful. More importantly, the Consortium's attorneys admit the earlier tender in para 6 of their letter
dated 3 September 2025, annexure 'FA18', CL 001 -331. The same admission is contained in the
Consortium's factual matrix.
13 Para 35 of the Preliminary RA, CL 006-21.
14 The termination letters for all the successful bidders in this tender are contained in the Consortium’s
Rule 53 record, CL 007.

[12] During 2025, at a time when the Department Tender had already been in place for
two years, the Consortium began acting for the first time as the ‘sole supplier’ of goods
to the Department rather than just as a project manager. 15 That occurred at the stage
when procurement of stationery for the 2026 academic year began.16

[13] On 10 June 2025, the Consortium issued a tender, referred to herein as the
‘Stationery Tender’. 17 The tender invited bids for the supply, warehousing, picking,
packing, and delivery of stationery packs to schools in the Eastern Cape.

[14] The Stationery Tender set out the process for evaluating bids, which included an
administrative evaluation, a functionality assessment, and the allocation of preferential
points in terms of the Preferential Procurement Regulations promulgated under the
Preferential Procurement Policy Framework Act No 5 of 2000 (‘the Framework Act’ or
‘the PPPFA’).18

[15] Power Stationery submitted its bid on 11 July 2025, provided the Consortium with
physical ‘sample packs’ on 15 July 2025, 19 attended a ‘Quality Assurance Session’ on
28 July 2025, 20 submitted a revised pricing schedule on 1 August 2025, 21 and attended
a second quality assurance review meeting on 5 August 2025.22

[16] On 19 August 2025, the Consortium sent an email to Power Stationery informing it
that its ‘bid was not successful’ because its price exceeded the approved budget. 23 This
is referred to herein as the ‘non-award decision’.

15 Para 32 of reply to the Department, CL 006-21.
16 Para 36 of reply to the Department, CL 006-22.
17 The Consortium invited companies, including Power Stationery, to submit a proposal in response to
“REQUEST FOR PROPOSAL FOR SUPPLY, WAREHOUSING, PICKING AND PACKING OF
STATIONERY PACKS TO ALL DESIGNATED SCHOOLS FOR THE EASTERN CAPE
DEPARTMENT OF EDUCATION” (para 76 of the FA, CL 001 -56 read with the Stationery Tender
which is attached as “FA6”, CL 001-257).
18 See para 80.2 of the FA, CL 001-57.

which is attached as “FA6”, CL 001-257).
18 See para 80.2 of the FA, CL 001-57.
19 Para 84 of the FA, CL 001-59, read with FA9, CL 001-285.
20 Paras 85-86 of the FA 001-59, read with the email attached as FA10, CL 001-288.
21 Para 88 of the FA CL 001-60, read with the email attached as FA11, CL 001-290.
22 Para 89 of the FA CL 001-60, read with the email attached as FA12, CL 001-292.
23 Para 91 of the FA CL 001-61, read with FA13, CL 001-294.

[17] The Consortium and Department confirmed the following further facts in their
papers:

(a) Neither the Consortium nor the Department regarded the Consortium to
be acting as an agent for the Department, but as principal; and neither
regarded the Consortium, in so acting, as bound to act in accordance with
the prescripts of the Promotion of Administrative Justice Act 2 of 2000
(‘PAJA’), or the procurement rules applicable to organs of state (and the
Department).24

(b) The Consortium crafted its own tender specifications, including those
related to specification and price, and administrative compliance and
functionality.25

(c) The Department was not involved in any decision -making under the
Stationery Tender. The Consortium procured under the Stationery Tender
without any involvement from the Department, including in respect of its
assessment of the bids and the decision on the award of the Stationery
Tender.26 The only ‘oversight’ exercised by the Department (apart from
update meetings with the Consortium) was by Department officials who
attended two ‘Quality Assurance' meetings.27


24 Para 17 of reply to the Department, CL 006-11.
25 See paras 37-38 of the Consortium’s answering affidavit, CL 003 -18.
26 Para 36 of the Consortium’s answering affidavit, CL 003 – 18. This is confirmed by the Department’s
answering affidavit, which states that there was no approval or ratification, and that no decision was
taken by the Department (through its accounting officer).
27 The Department stresses that it ‘had no role to play’ in the selection of suppliers (paragraph 17 of the
Department’s answering affidavit, CL 005 -8) and the Consortium acted entirely ‘independently’ of the
Department in procuring the goods which are the subject of the Stationery Tender (paragraph 30 of
the Department’s answering affidavit, CL 005 -11). The Department states that it had ‘nothing to do
with the specifications, evaluation, adjudication and award of the [Stationery Tender]’ (para 116 of the

Department’s answering affidavit, CL 005-26).

(d) The non -award decision was not approved, ratified, or taken by the
Department (through its accounting officer),28 and there is no delegation in
place authorising the Consortium to make decisions on behalf of the
Department.

(e) The Consortium procured in terms of a budgetary allocation/amount
prescribed by the Department, and for which the Consortium paid upfront
and then invoiced the Department, which in turn paid the Consortium. 29
The Department explained in more detail that ‘[i]f and when the
Department experienced budget challenges, the PMA [Project
Management Agency] was expected to procure all the required items. The
PMA would then pay for what it had procured, only for it to be paid by the
Department upon availability of the budget.’30 Further, that ‘the Consortium
has had occasion to pay suppliers of stationery out of its own funds.’31

(f) When performing its procurement functions under the Department Tender,
by distributing learning materials, the Consortium provided ‘an essential
service providing basic education to learners’, that the ‘right of
schoolchildren to basic education is a constitutional right’ and that it did so
to assist the Department because it ‘cannot fulfil its constitutional
obligation without the supply and distribution of stationery and
textbooks’.32
(g) The Stationery Tender invited bids from service providers ‘to supply,
warehouse, pick, pack, and deliver all stationery packs to schools based
on data supplied by THE AGENCY [the Consortium]’.33


28 Para 17.3 of reply to the Department, CL 006-12.
29 Paras 24-25 of the Consortium’s answering affidavit, CL 003-15.
30 Department’s answering affidavit para 18, CL 005-8.
31 Ibid. para 19, CL 005-9.
32 Paras 26-31 of the Consortium’s answering affidavit, CL 003-15 to 17.
33 Stationery Tender, CL 001-259: ‘PROJECT BRIEF'.

(h) The Consortium at no stage either considered or acted in accordance with
the Department’s Supply Chain Management (“SCM”) Policy in executing
the Stationery Tender.34

BROAD STATEMENT OF THE PRINCIPAL ISSUES

[18] It is helpful to identify, in broad outline, the principal issues in the matter before
addressing the merits of the application and the various other issues raised by the
respondents.

[19] It is common cause that the Consortium procured learning materials for the 2026
academic year from suppliers and provided them to the schools in the province, without
complying with the legal prescripts governing public-sector procurement.

[20] The applicant contends that the Consortium acted unlawfully because it exercised a
public power and performed a public function, and was therefore bound by the
legislative public-sector procurement framework. In any event, the Department could not
lawfully delegate or abdicate its procurement decision -making power to the Consortium.
Its conduct, therefore, falls to be declared unconstitutional and invalid and set aside.
[21] The case of the Consortium and the Department is that the Consortium's conduct
was authorized by the Department Tender, which was regularly awarded to it after due
compliance with all public -sector procurement prescripts. The tender rendered it the
sole supplier of the relevant goods to the Department. This was confirmed by the terms
of the SLA. It procured the goods from other suppliers pursuant to the Stationery Tender

34 Para 40 of the Consortium’s answering affidavit, CL 003 -19. The Department states that the SCM
Policy applicable to the tender would have been the Consortium's, CL 005 -26, para 114.1. The
Consortium, on the other hand, does not say that it acted in terms of any SCM Policy and describes
the process it followed as 'purely contractual in nature', CL 003-19 para 40.

while acting in its private capacity in compliance with its contractual obligation to, in turn,
supply the goods to the Department. Its acquisition of the goods occurred in the course
of normal commercial activity and was not restrained by the public -sector procurement
prescripts, which were inapplicable in the circumstances. While they accept the legal
position that private entities engaging in public procurement are bound to comply with
the applicable public law framework, they contend that, as a matter o f fact, and contrary
to the applicant’s contention, the Consortium was not engaged in public procurement in
executing the Stationery Tender. It was not performing a public function or exercising a
public power. The applicant accordingly failed to make out a case for the relief it is
seeking, and the application falls to be dismissed.

[22] It is readily apparent that the central, crisp issue is the true nature of the
Consortium’s actions in acquiring the goods. If this were purely a private commercial
exercise (and not public procurement) to which the said prescripts did not apply, its
conduct is unassailable. Aliter, if the prescripts do apply.

[23] A further issue is whether it is competent for the applicant to challenge the
Consortium’s conduct pursuant to the Stationery Tender without impugning the
Department Tender or the SLA; furthermore, whether the Department could lawfully
delegate its procurement decision-making to a third party, such as the Consortium.

LEGISLATIVE AND LEGAL FRAMEWORK REGULATING PUBLIC PROCUREMENT

The relevant statutory provisions

[24] To recap, public procurement (procurement by or for Government or the State) is
regulated by section 217 of the Constitution, along with several cognate statutes that
give effect to it.

[25] Chief among those statutes for present purposes is the Public Finance
Management Act, 1 of 1999 (‘PFMA’), which is to be read with the Treasury Regulations

made thereunder and promulgated in Government Notice No. GNR 225 published in the
Government Gazette No. GG 27388 of 15 March 2005 (‘Treasury Regulations’) 35 and
also the Preferential Procurement Policy Framework Act 5 of 2000 (‘the Framework
Act’) and regulations36. These statutory prescripts have a common objective: to promote
a ‘fair, equitable, transparent, cost -effective and competitive’ process for procuring
goods or services from service providers.37

[26] Section 38(1)(a)(iii) of the PFMA stipulates that an accounting officer for a
Department must ensure that the Department has and maintains ‘an appropriate
procurement or provisioning system which is fair, equitable, transparent, competitive
and cost-effective’, thus echoing the provisions of section 217(1) of the Constitution.

[27] These statutory prescripts are aimed at ‘ensuring good governance in the field of
procurement policies and procedures and the priority accorded to fair dealing and
equitable relationships among parties to provincial contracts’ and ‘to eliminate
patronage or worse in the awarding of contracts, to provide members of the public with
opportunities to tender to fulfil provincial needs, and to ensure the fair, impartial, and
independent exercise of the power to award provincial contracts’.38

The Legal Framework

(i) Accountability of Private Bodies


35 TEB Properties CC v The MEC, Department of Health and Social Development, North West (792/10)
[2011] ZASCA 243 (01 December 2011) (‘ TEB’) paras 14 -15; Chief Executive Officer, SA Social
Security Agency NO & Others v Cash Paymaster Services (Pty) Ltd 2012(1) SA 216 (SCA) para 15 -
17.
36 The Preferential Procurement Regulations were promulgated in Government Notice No. 2721 and
published in Government Gazette No. 47452 dated 4 November 2022. Its 2017 predecessor was set
aside pursuant to a constitutional challenge. It is not immediately apparent how the 2022 regulations

will be affected by the legal challenge to the Public Procurement Act, which the Constitutional Court
heard on 18-19 May 2026, when judgment was reserved, cf n1 above.
37 See TEB para 7.
38 Eastern Cape Provincial Government & Others v Contractprops 25 (Pty) Ltd 2001 (4) SA 142 (SCA)
paras 7-8.

[28] While contracting out state functions is not in itself unlawful, 39 the appointee's
private nature does not immunize it from scrutiny under constitutional standards. When
a private entity performs the work or exercises the powers associated with public
entities, it also exercises a public power.

[29] This is a long-established principle in administrative law. In Dawnlaan Beleggings40,
a case decided before the Constitution, the court reviewed the Johannesburg Stock
Exchange's (‘JSE’) failure to comply with its own listing requirements. While the JSE is
not a statutory body, the court took into account its important public function and
concluded that its decisions are subject to judicial review.41

[30] The rationale for this approach is self -evident. It would be anomalous if public law
applied when a public entity performs a function but not when a third party performs the
same function. If it was properly regarded as a public function when performed by the
public entity itself, its nature is not changed when the same function is performed by a
private body to whom the power might have been outsourced.42 Any contrary conclusion
would create an ‘accountability vacuum’ – as the exercise of public power could escape
the rigours of public law by formalistic allocation of powers to private parties. 43 It is in
that context – and to ‘fill the accountability vacuum' – that courts apply judicial review
standards to private bodies. 44 As the Constitutional Court indicated, ‘[o]ur Constitution

39 See AAA Investments (Pty) Ltd v Micro Finance Regulatory Council & Another 2007(1) SA 343 (CC)
para 22 (‘AAA Investments’).
40 Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange & others 1983 (3) SA 344 (W).
41 Ibid at 365B.
42 C Hoexter & G Penfold Administrative law in South Africa 3 ed (2021) at 289 (‘Hoexter’).
43 Hoexter op cit at 205.
44 See R v Panel on Take -Overs and Mergers, ex parte Datafin plc and Another (Norton Opax plc and

Another Intervening) [1987] 1 All ER 564 (CA), where the English Court of Appeal had decided that
the Panel on Take -Overs & Mergers, a self -regulating unincorporated association operating the City
of London Code on Take -Overs & Mergers, having prescribed a code of conduct regulating take -
overs, was subject to judicial review when acting in terms of its rules. The court held that not only the
source but also the nature of the power exercised by private bodies must be examined. It concluded
that the Panel performs a public duty or exercises a public law function, rendering it subject to judicial
review; Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another [1988] 2
All SA 308 (A), approved a similar approach adopted in Dawnlaan Beleggings (n 39 above).

ensures that government cannot be released from its . . . obligations simply because it
employs the strategy of delegating its functions to another entity’.45

[31] The courts have routinely observed this principle and repeatedly stressed the strict
application of public procurement rules and the accountability of private parties
performing public functions on behalf of the state. In Allpay II ,46 a private company
(Cash Paymaster Services (Pty) Ltd, ‘CPS’) was held by the Constitutional Court to
qualify as an organ of state because it acted in furtherance of the right to social security
in section 27 of the Constitution. Froneman J observed that CPS ‘plays a unique and
central role as the gatekeeper of the right to social security and effectively controls
beneficiaries’ access to social assistance. For all practical purposes, it is not only the
face, but also the operational arm, of the “administration in the national . . . sphere of
government”, insofar as the payment of social grants is concerned.’47

[32] The court found that this status had very significant implications, including public
scrutiny of the private entity’s operations ‘dependent on, or derived from, the
performance of public functions’. 48 It is settled law that a private entity exercising public
powers or performing public functions is not relieved of the duties that attach to the
power or function. The court affirmed this position in several cases.

[33] In Allpay II 49, the court stressed, in explaining why CPS’s assumption of duties
towards social grant beneficiaries did not relieve SASSA of its duties:

… SASSA does not, by the conclusion of the contract, divest itself of its constitutional
responsibility and public accountability for rendering the public services. It remains
accountable to the people of South Africa for the performance of those functions by Cash
Paymaster.

45 AAA Investments above n 38 para 40.

Paymaster.

45 AAA Investments above n 38 para 40.
46 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others (No 2) 2014 (4) SA 179 (CC) (“Allpay II”).
47 Para 55 (footnotes omitted).
48 Para 59.
49 Above n 46.

. . . When Cash Paymaster concluded the contract for the rendering of public services, it too
became accountable to the people of South Africa in relation to the public power it acquired
and the public function it performs.
. . . The commercial part dependent on, or derived from, the performance of public functions
is subject to public scrutiny, both in its operational and financial aspects.50

[34] The court in AAA Investments 51 made this principle clear, where it held: ‘Our
Constitution ensures, as in Canada and the United States, that government cannot be
released from its human rights and rule of law obligations simply because it employs the
strategy of delegating its functions to another entity’52.

[35] The court more recently considered this issue in Pridwin53. That case concerned
section 29 and arose in the context of access to basic education provided by a private
party, in respect of a child’s exclusion from an independent school. The Constitutional
Court confirmed the existence of a negative duty on a private (independent) school not
to infringe the child’s right to basic education.54
[36] Another noteworthy Constitutional Court case that emphasises the above principle
is Grinpal55. It concerned a private entity, City Power (the appellant), which was
engaged by the Johannesburg Municipality as an external service provider in respect of
the statutory obligation to supply electricity to its residents, thereby performing public
functions. Relevant to the present matter, the court characterised City Power through its
functions as follows (at para 23):


50 Ibid paras 58-59.
51 Above n 39.
52 Ibid para 40.
53 AB & Another v Pridwin Preparatory School & Others 2020(5) SA 327 (CC).
54 See also Association of Mineworkers and Construction Union and Others v Chamber of Mines of South
Africa and Others 2017 (3) SA 242 (CC), where Cameron J held: ‘[74] . . . the predominant focus is

on the nature of the power that is being exercised. The question is not so much, who exercises the
power, nor even, where does the power come from: but what does the power look and feel like? What
does it do? Pointers here include: (a) the source of the power; (b) the nature of the power; (c) its
subject matter; and (d) whether it involves the exercise of a public duty.’
55 City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others 2015 (6) BCLR 660
(CC).

Similarly, City Power, like SASSA, is a private company performing a public function.
The fact that it performs a public function bears relevance in its classification and cannot
be ignored. As in AllPay 2, once City Power concluded the service level agreements, it
delegated some of its functions to Grinpal which, as a result, also became a municipal
entity for those functions, and only in so far as that section of its business was
concerned. For the purposes of the present dispute, Grinpal and City Power are organs
of state that perform public functions akin to those of a municipality. The Johannesburg
Municipality cannot avoid its constitutional obligations and public accountability for the
rendering of public services by forming a municipal entity like City Power. It remains
accountable to the people of South Africa for the performance of those functions by City
Power. Likewise, City Power cannot avoid its constitutional obligations and public
accountability by dedicating its functions to Grinpal.

[37] Most recently, in Black Sash 56 (which is a sequel to AllPay II), the Constitutional
Court stated (at para 28):

It bears emphasis, further, that this Court in AllPay II declared CPS to be an organ of
state with all the concomitant constitutional duties and obligations. This Court
emphasised CPS’s constitutional tasks and obligations by virtue of the contract it had
concluded with SASSA to handle the administration of social pensions. And pointed out
that “[w]hen Cash Paymaster concluded the contract for the rendering of public services,
it too became accountable to the people of South Africa in relation to the public power it
acquired, and the public function it performed.
[38] The Supreme Court of Appeal (‘SCA’) also confirmed this principle in several
cases. In Umfolozi Transport 57 the court found in the same vein that all steps that
formed part of the public procurement process undertaken by a ‘private’ entity were

formed part of the public procurement process undertaken by a ‘private’ entity were
administrative action. The court rejected an argument that the appellant was acting in a
‘private-law’ capacity.


56 Black Sash Trust & Another v Minister of Social Development & Others [2026] ZACC 12 (8 April 2026).
57 Umfolozi Transport (Edms) Bpk v Minister van Vervoer [1997] 2 All SA 548 (A).

[39] In Agribee58 it rejected the contention that, because of the private nature of the
relevant entity and the project being pursued (funding for beef farmers), the
arrangement was unregulated under section 217. The court found instead that the
project ‘fell within the core functions of the [State].’59

[40] In NAD Property60, the court indicated that the exercise of the procurement function
is typically administrative and a matter of public law, subject to the laws governing the
exercise of public power. The court held:

[10] Public entities conduct procurement under exacting laws for reasons of
transparency, fairness, competitiveness, accountability, and public service delivery. The
procurement laws, binding upon organs of state, flow from s 217(1) of the Constitution.
[11] In this particular case, we are concerned with the constitutional legality of the
agreement, based on the non -compliance with s 217 of the Constitution, as well as the
provisions of the MFMA. This was at the heart of the dispute that the Arbitrator was
required to adjudicate upon. It involved the procurement of services that were
unavoidably a matter of public law and could not fall in the domain of issues to be
determined other than by a court. The Arbitrator was well aware of the fact that the
validity of the construction agreement was challenged on the basis of its constitutional
invalidity for lack of compliance with the provisions of s 217 of the Constitution and the
provisions of the MFMA, and on no other basis.
[12] Public procurement is subject to laws that concern the exercise of public powers.
When the municipality contracted with NAD, it was not merely exercising a private law
competence, but its powers as an organ of state. The ground of invalidity pleaded was
that the agreement was invalid by virtue of its failure to comply with the duties of the
Municipality to adhere to the requirements of lawful procurement as a matter of public

Municipality to adhere to the requirements of lawful procurement as a matter of public
law. The question is thus whether the lawful exercise of public powers and the remedies
for their unlawful exercise are matters that can be decided by a referral to arbitration.
The general answer is no because it is courts that supervise the exercise of public power

58 Eastern Cape Development Agency & Another v Agribee Beef Fund (Pty) Ltd & Others 2023(5) SA 100
(SCA).
59 Ibid para 33.
60 NAD Property Income Fund (Pty) Ltd v Bushbuckridge Local Municipality and Others 2026(2) SA 426
(SCA).

and provide remedies under the Constitution, and the scheme of review provided by
legality and the Promotion of Administrative Justice Act 3 of 2000.

[41] It is apparent from the court’s decision in SALGA61 that the public -law nature of
power is not derogated from by the fact that a commercial contractual relationship
resulted from the exercise of that power, which remains susceptible to judicial review
regardless. The court rejected the Bargaining Council's argument that the collective
agreement in issue was a private agreement and held that, by extending the
agreement's application, it impermissibly purported to exercise a public power or
perform a public function. The court indicated:

[122] There can be no doubt that when a bargaining council arrogates to itself the power
to extend the application of a CA [Collective Agreement] to retirees and non -unionised
employees in the manner in which the CA does, it impermissibly purports to exercise a
public power or perform a public function which may only be performed by a member of
the Executive (i.e. the Minister) in terms of legislation (i.e. s 32 of the LRA), thereby
making the CA susceptible to judicial review.

[42] Any competence enjoyed by a private entity ‘to secure public goods that reaches
beyond mere private advancement’ amounts to discharging a public power or function
and ‘attracts the supervisory discipline of public law.’ 62 As the Constitutional Court
explained in AAA Investments, an entity ‘does not have to be part of government or the
government itself to be bound by the Constitution as a whole’.63

[43] The Constitutional Court in SARFU64 pointed out that it is the nature of the power
that must be considered to determine if it is public. A purely institutional test is
insufficient. Accordingly, it is not the functionary (or its private -law nature) but the

61 South African Local Government Bargaining Council and Others v Municipal Workers Retirement Fund

and Others (770/2023) [2025] ZASCA 120; 2026(1) SA 477 (SCA) (21 August 2025).
62 Ndoro and Another v South African Football Association and Others 2018(5) SA 630 (GJ) para 23.
63 Above n 39 para 41.
64 President of the Republic of South Africa v South African Rugby Football Union 2000(1) SA 1 (CC)
para 141.

function that is critical. 65 The mere fact that the power is exercised by a private entity
does not mean that it is inexorably private in nature.

[44] Based on the above principles, it follows that if it exercised a public power or
performed a public function in procuring LTSM under the Stationery Tender, the
Consortium cannot escape scrutiny under the public procurement legal framework
merely by virtue of its private status.

[45] The preceding question, however, is whether the Consortium can exercise the
Department’s procurement decision -making power at all. Is it competent to empower a
private party to assume the power and responsibility of an organ of state in respect of
deciding the award of tenders for the procurement of public goods and services? It is to
that question that I now turn.

(ii) Principles of Delegation

[46] It is generally accepted that the State may delegate its regulatory powers or use
private entities to perform its duties and functions. The Supreme Court of Appeal
(‘SCA’) has referred to ‘ the increasing use by the State of private law institutions,
notably contract, to perform its duties . This takes place by privatization, delegation,
outsourcing, etc.’66 South Africa, following the lead of other countries, has privatized or
contracted out some functions traditionally performed or provided by the government,
from maintaining roads and running prisons to providing water and electricity.67

[47] The delegation of public procurement decision -making (especially awarding
tenders), how ever, cannot be equated to the commonplace outsourcing of the

65 Minister of Defence and Military Veterans v Motau and Others 2014(5) SA 69 (CC) para 36 (‘Motau’).
66 Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA) (‘Goodman Brothers’) para 31.
67 Hoexter op cit n 42 at 202.

responsibility to perform state functions, such as distributing electricity 68, or security
services69, or administering social grants.70

[48] No decided case came to my attention holding that the core constitutional function
of public procurement decision -making may be lawfully outsourced to a third party
pursuant to an agreement to that effect. Where procurement functions have been
delegated at all, that has arisen from a legislative enactment, not by ad hoc delegation
or contracting. One such example was in Steenkamp71, where the Constitutional Court
explained the role of the provincial tender board in these terms:

It will be remembered that the provincial tender board is the successor in title to the
State Tender Board within its province. It owes its establishment to provincial legislation.
It exercises exclusive power to procure supplies and services for the province, to enter
into or terminate procurement agreements on its behalf, and could claim damages
presumably for breach of a supply contract to which it is a party. It is duty -bound to
exercise its powers fairly, impartially, and independently, although, in the main, it acts as
a procuring agent for the provincial government.

[49] The delegation of powers and duties by accounting officers of a department is
regulated by section 44 of the PFMA.72

68 For example, in Grinpal above n 55, where City Power performed a public function by providing
electricity to the local community.
69 Mafoko Security Patrols (Pty) Ltd and Others v Mjayeli Security (Pty) Ltd and Others (590/2024) [2025]
ZASCA 179 (28 November 2025) (“Mafoko”).
70 Such as in Allpay II.
71 2007(3) SA 121 (CC) para 34.
72 Section 44 provides:
‘(1) The accounting officer for a department, trading entity, or constitutional institution may-
(a) in writing, delegate any of the powers entrusted or delegated to the accounting officer in terms of
this Act, to an official in that department, trading entity, or constitutional institution; or

(b) instruct any official in that department, trading entity, or constitutional institution to perform any of
the duties assigned to the accounting officer in terms of this Act.
(2) A delegation or instruction to an official in terms of subsection (1)-
(a) is subject to any limitations and conditions prescribed in terms of this Act or as the relevant
treasury may impose;
(b) is subject to any limitations and conditions the accounting officer may impose;
(c) may either be to a specific individual or to the holder of a specific post in the relevant department,
trading entity, or constitutional institution; and

[50] The PFMA does not empower an accounting officer to delegate any power or
function (which includes the procuring function) to a private entity. In terms of section
44(1), it may only be delegated to ‘an official in that department, trading entity or
constitutional institution'.

[51] Under the PFMA, a department means ‘a national or provincial department or a
national or provincial government component.’ 73 A trading entity ‘means an entity
operating within the administration of a department for the provision or sale of goods or
services, and established (a) in the case of a national department, with the approval of
the National Treasury; or (b) in the case of a provincial department, with the approval of
the relevant provincial treasury acting within a prescribed framework.’ 74 A constitutional
institution ‘means an institution listed in Schedule 1’ . It is not in contention that none of
these includes the Consortium or any other such private party.75

[52] The prescriptions of section 44 of the PFMA are clear and permit the delegation of
public procurement decisions only to particular public officials, not to a private party.

[53] This is so for good reason. Public procurement is a core government function
assigned to the accounting officer/accounting authority, who may delegate it to
designated public officials who remain under the accounting officer's control. Section
44(2)(d) of the PFMA provides that such a delegation ‘does not divest the accounting
officer of the responsibility concerning the exercise of the delegated power or the
performance of the assigned duty.’

(d) does not divest the accounting officer of the responsibility concerning the exercise of the
delegated power or the performance of the assigned duty.
(3) The accounting officer may confirm, vary, or revoke any decision taken by an official as a result of a
delegation or instruction in terms of subsection (1), subject to any rights that may have become
vested as a consequence of the decision.’

vested as a consequence of the decision.’
73 Cf s1, Definitions.
74 Ibid.
75 Under the PFMA, Schedule 1 lists the following as “constitutional institutions”: 1. The Commission for
the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; 2. The
Commission on Gender Equality; 3. The Financial and Fiscal Commission; 4. The Independent
Communications Authority of South Africa; 5. The Independent Electoral Commission; 6. The
Municipal Demarcation Board; 7. The Pan South African Language Board; 8. The Public Protector of
South Africa; 9. The South African Human Rights Commission.

[54] In AAA Investments, the Constitutional Court addressed the same issue of
delegation and its lawful ambit in the context of rule -making.76 The late Chief Justice
Langa, in his separate judgment, was not prepared to accept that the power to make
rules for the microfinance industry (which was assigned to the relevant Minister) could
be transferred to a private party. 77 He reached this conclusion by having regard to the
following considerations:

The powers given to the Minister in section 15A relate to the determination of policy.
They are given to him because of his position as an accountable member of
government. It seems to me that they should, to the extent that they involve the
determination of policy, be exercised by him.

[55] The Learned Chief Justice proceeded to identify the following factors in determining
whether a lawful delegation could take place:

(a) Firstly, ‘in general, powers that have far -reaching impact or that involve the
exercise of a large degree of discretion or are legislative in nature are less likely to
allow for sub-delegation than less important administrative or executive powers that
can be mechanically applied’. It follows that the important constitutional function
served by public procurement, coupled with the court -recognised and disconcerting
potential for widespread abuse of public funds 78, supports the conclusion that no
delegation is possible.79
(b) Secondly, even where delegation was possible, ‘the total delegation of a power is
less likely to be permitted than its partial delegation'. Where partial delegation

76 Above n 39.
77 Ibid para 84.
78 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South
African Social Security Agency and Others 2014 (1) SA 604 (CC) (‘Allpay I’), para 27: ‘deviations from
fair process may themselves all too often be symptoms of corruption or malfeasance in the process.

In other words, an unfair process may be deliberately skewed. Hence, insistence on compliance with
process formalities has a three-fold purpose: (a) it ensures fairness to participants in the bid process;
(b) it enhances the likelihood of efficiency and optimality in the outcome; and (c) it serves as a
guardian against a process skewed by corrupt influences.’
79 AAA Investments above n 39 para 86.

occurs, ‘the level of control maintained by the original functionary over the delegated
power is very important’. 80 The delegation of less important administrative tasks
(short of the actual award of a tender) is thus more likely to pass muster.
(c) Thirdly, the nature and importance of the delegator and that of the delegee are
also relevant, as well as the maintenance of accountability. It was noted ‘that
accountability is a central value of our Constitution. This means our law must be
developed and interpreted to ensure that all bodies exercising public power are held
accountable. However, to my mind, it also means that courts should be slow to infer
the delegation of power to bodies that cannot be held directly accountable through
ordinary political processes.’ The Consortium naturally falls in the latter category.
(d) Finally, the Learned Chief Justice noted that the Minister is a very important
member of the government, who is directly accountable. Needless to say, so is the
MEC and the Department in this case.
[60] It should be added that the latter consideration applies equally to the accounting
officer or accounting authority of institutions regulated by the PFMA, such as the
Department. The accounting officer is responsible for developing supply chain
management systems, ensuring legal compliance, and maintaining budgets. 81 By
virtue of section 32 of the PFMA, the accounting officer can be held personally liable
for the intentional or negligent incurrence of irregular expenditure, thus ensuring
sound and sustainable management of the fiscal and financial affairs of public
institutions, accountability, and lawful expenditure of public funds. 82 It is to be noted
that none of these provisions (which are safeguards regarding the conduct of
accounting officers) is intended to bind private parties. Delegating the accounting
officer's procurement decisions to a private party would thus prima facie circumvent
these statutory requirements.

PRELIMINARY ISSUES


80 Ibid para 87.

these statutory requirements.

PRELIMINARY ISSUES


80 Ibid para 87.
81 Zeal Health Innovations (Pty) Ltd v Minister of Defence and Military Veterans and Another (967/2023)
[2024] ZASCA 183 (27 December 2024) para 12 (“Zeal”).
82 Ibid para 56.

[56] The respondents raised various preliminary issues that require attention before
proceeding to the merits of the matter. These issues will be dealt with and assessed in
turn.

Urgency

[57] The respondents contend that no true urgency exists. They submit with reference to
Caledon Street Restaurants 83 that the applicant failed ‘to demonstrate sufficient real
loss or damage were [it] to be compelled to rely solely or substantially on the normal
procedure’, primarily because it does not seek any consequential relief pursuant to the
declaratory orders being pursued. There has furthermore been a material delay in
launching the proceedings in that the Department Tender was awarded to the
Consortium in July 2023, while the application was only launched some two years and
three months later in October 2025. In addition, this was four months after the
Stationery Tender was issued. The contracts concluded with suppliers under the
Stationery Tender were fully performed and expired on 31 March 2026. The
Consortium’s appointment under the Department Tender will expire on 19 July 2026,
subject to a possible two -year extension. Moreover, the issues in the matter have no
practical consequence, and the relief is academic in substance. It should not be
entertained by the court on the authority of Eagles Landing Body Corporate.84 The
respondents accordingly contend that any urgency was self -created and that the
applicant has failed to show any prejudice that would result from not being able to
obtain substantial redress at a hearing in due course. They rely in this regard on
Mogalakwena Local Municipality. 85 Finally, it was submitted that the applicant seeks to
secure an advisory opinion on abstract issues, which is impermissible and should be
disallowed in the interests of justice and the matter struck from the roll.


83 Caledon Street Restaurants CC v D’Aviera [1998] JOL 1832 (SE) pp. 7–9.
84 Eagles Landing Body Corporate v Molewa NO & Others 2003(1) SA 412 (T).

84 Eagles Landing Body Corporate v Molewa NO & Others 2003(1) SA 412 (T).
85 Mogalakwena Local Municipality v Provincial Executive Council,Limpopo & Others [2014] 4 All SA 67
(GP) at para 64.

[58] The applicant retorts that the respondents’ argument of delay is based on a
misapprehension of the applicant’ s case, which does not involve a complaint regarding
the Department Tender or its award to the Consortium. The complaint relates to the
Consortium's conduct in July 2025 in procuring public goods under the Stationery
Tender without complying with the rules governing public procurement. The application
was launched after reasonable investigations to clarify the Consortium’s conduct, rather
than rushing into legal proceedings that might prove unnecessary, an approach
sanctioned by Centre for Child Law. 86 The prejudice flowing from following the normal
procedure is that the impugned conduct will be repeated in the next round of
procurement set to commence no later than June 2026 for the 2027 academic year and
even beyond, while litigation remains pending. The matter importantly concerns a
serious violation of the rule of law and involves constitutional issues for determination.
In any event, the matter has been postponed to the opposed court on full papers, which
militates against the urgency complaint.

[59] In my view, there is merit in the applicant's contention that the respondents
mischaracterised its case as directed at the Department Tender, rather than at the
conduct of the Consortium, which manifested only in July 2025. On this basis, there has
clearly been no unreasonable delay in launching these proceedings. The applicant has
adequately explained the steps it took, without receiving much cooperation from the
respondents, to obtain the information required to decide whether to launch
proceedings, urgently or otherwise. It cannot be justifiably criticised in this regard.
[60] It is also so that should the issues raised herein not be resolved before the next
round of procurement, the applicant stands to be prejudiced by the conduct it
complained about being continued into the 2027 academic year and beyond, while

complained about being continued into the 2027 academic year and beyond, while
litigation in the normal course plays out through the hierarchy of courts.

[61] I agree that any prejudice or inconvenience occasioned to the respondents by any
abridgment of the time periods in the rules of court has been adequately mitigated by
the fact that the matter was enrolled for a two -day hearing and fully argued before the

86 Centre for Child Law & Others v South African Council for Educators 2024(4) SA 473 (SCA).

opposed court. Full papers and heads of argument, as well as supplementary heads of
argument and a post -argument note from the Consortium, together with the applicant's
response, were available to the court. The following dicta in Mogalakwena87 are
apposite:

[64] These factors include (but are not limited to): whether the respondents can
adequately present their cases in the time available between notice of the application to
them and the actual hearing, other prejudice to the respondents and the administration
of justice, the strength of the case made by the applicant, and any delay by the applicant
in asserting its rights.
. . .
[68] In addition, the respondents have put what they wanted to before the court. This
Division has a proud tradition of making judges available at short notice for cases which
deserve prompt attention. This is such a case. There was no prejudice to the
administration of justice: this case alone was assigned to me for hearing on the day it
came before me. So, no other litigants were prejudiced by the applicant’s effort to
promote itself in the queue of pending cases.
[69]. Weighing all this, I hold that the matter is urgent and permit it to remain on the roll
for hearing.

[62] In any event, the important constitutional issues raised in the matter, which are not
academic, require determination sooner rather than later in the public interest, relating
as they do to the provision of learning materials to all schools in the Eastern Cape
Province. I am accordingly satisfied that the matter is sufficiently urgent and that it
should remain on the roll and be determined on its merits.

Mootness

[63] The respondents submitted that the matter is moot, in that the Department Tender
will expire on 19 July 2026 and that the procurement under the tender is complete.
Accordingly, the outcome of the case would have no practical effect and is of academic

87 Above n 85.

interest only. There is also no basis for the court to exercise its discretion to hear the
matter in the interests of justice, despite it being moot.

[64] The applicant accepts that mootness is relevant to the non -award decision, which
relates to a process that has been finalised, but not to the declaratory relief, which does
not pertain only to past conduct or events. It contended that, according to their
respective versions, the Department and the Consortium intend to continue engaging in
such conduct, which they do not regard as unlawful. The impugned conduct is
accordingly ongoing, and in the context of the present matter, none of the issues is
moot.

[65] In National Coalition for Gay and Lesbian Equality and Others 88 the Constitutional
Court said: ‘A case is moot and therefore not justiciable, if it no longer presents an
existing live controversy which should exist if the court is to avoid giving advisory
opinions on abstract propositions of law’.

[66] I am not persuaded that any of the issues in this matter are moot. In my view, there
is a reasonable possibility that the appointment of the Consortium under the Department
Tender will be extended for a further two years, as provided. The applicant has invited
the respondents in its papers to deal directly with the issue of the extension, which they
declined to do. Counsel for the Department made the remarkable submission that
because this invitation was contained in the reply to the Consortium’s answering
affidavit, the Department did not need to respond to, or even read, the reply. This
attitude is to be lamented and is not in line with the Department’s responsibility for
openness, which rests on organs of state when preparing court papers or in their
dealings with the court. In Public Protector,89 the Constitutional Court explained that:


88 National Coalition for Gay and Lesbian Equality & Others v Minister of Home Affairs & Others 2000(2)
SA 1(CC) at para 21.

SA 1(CC) at para 21.
89 Public Protector v South African Reserve Bank 2019(6) SA 53 para 152. See also South African Social
Security Agency v Minister of Social Development (Corruption Watch (NPC) RF Amicus Curiae)
2018(10) BCLR 1291 (CC para 38; MEC for Health, Eastern Cape and Another v Kirland investments
(Pty) Ltd 2014(5) BCLR 547 (CC) para 82.

The constitution requires public officials to be accountable and observe heightened
standards in litigation. They must not mislead or obfuscate. They must do right, and they
must do it properly. They are required to be candid and place a full and fair account of
the facts before a court.

[67] In my view, it is justified to approach the case on the basis that the reasonable
possibility of a two-year extension is not excluded.

[68] Insofar as the non -award decision is concerned, there is accordingly a reasonable
likelihood that the Consortium would in future repeat the impugned process which it
followed in relation to the Stationery Tender. Given the importance of the issue, it is in
the interests of justice and the public interest also to determine the issues relevant to
the non-award decision.

[69] It follows that there is no merit in the contention that the matter is moot.

Peremption

[70] This doctrine has been described as follows in South African Revenue Service :90
‘Peremption is a waiver of one’s constitutional right to appeal in a way that leaves no
shred of reasonable doubt about the losing party’ s, self-resignation to the unfavourable
order that could otherwise be appealed against’. The underlying principle is that ‘no
person can be allowed to take up two positions inconsistent with one another, or as is
commonly expressed, to blow hot and cold, to approbate and reprobate’.91

[71] The Department raised this issue in its heads of argument where it was submitted
that by participating in the Stationery Tender, the applicant ‘ communicated to the world
that it had no problem with the Consortium’s exercise of its powers in terms of its

90 South African Revenue Service v Commission for Conciliation, Mediation and Arbitration 2017(1) SA
549 (CC) at para 26 ('South African Revenue Service').
91 Hlatshwayo v Mare & Deas 1912 AD 242 at 259.

contractual arrangement with the Department’. 92 It, however, accepted that some
flexibility applies to the enforcement of the doctrine where policy considerations militate
against it. It contended that no such considerations have been shown to apply in this
matter. I should add that the issue of pre -emption has not been raised in oral argument
by counsel for the Department and was not raised at all by the Consortium.

[72] The applicant contended in its heads of argument that the Department’s reliance on
the doctrine of pre -emption must fail on both the facts and the law. The unlawful
conduct was revealed only much later, after inquiries into the adjudication of the
Stationery Tender exposed what had transpired, and the full extent of the conduct was
confirmed only in the affidavits in this matter. The applicant could thus, as a matter of
fact, not have acquiesced. The Constitutional Court in South African Revenue Service 93
stressed that peremption is never lightly presumed. The test is not met, and in any
event, the impugned conduct is unlawful, a legal conclusion that arises despite the
applicant’s participation in the tender. The Department's argument amounts to a claim of
estoppel, which has been rejected as a legal defence to a claim of unlawfulness. 94 Prior
participation in the Stationery Tender cannot extinguish the applicant’s right to approach
the court or the court's constitutional obligation to deal with the matter.

[73] I agree with the applicant's submissions that no case has been made out for
sustaining a defence of peremption in the circumstances.
Joinder

[74] The Consortium contends in its heads of argument that the proceedings should be
stayed pending the joinder of some 189 suppliers and distributors participating in the
tenders, or that the application be dismissed, since each has a direct and substantial
legal interest in the declaratory relief sought. It argued that the matter cannot be

legal interest in the declaratory relief sought. It argued that the matter cannot be
properly adjudicated in the absence of these parties, nor can an effective order be

92 Department’s heads of argument para 30.
93 Above n 90 para 26.
94 Trust Bank van Afrika Bpk v Eksteen 1964(3) SA 402 (A) at 411H -412B; City of Tswane Metropolitan
Municipality v RPM Bricks (Pty) Ltd 2008(3) SA 1 (SCA).

granted. This issue was, however, not seriously pressed in argument by the
Consortium’s counsel.

[75] The applicant addresses this issue in its heads of argument and in the note in
support of its oral reply. It contends that all interested parties have been joined, and that
the complaint of non-joinder of the Consortium’s suppliers and all the competitors for the
Department Tender is based on a misapprehension of the declaratory relief sought. The
focus of such relief is to clarify the confines of the Consortium’s appointment and
constitutionally impugn the Department’s abdication of its functions and duties. No
consequential relief is sought. In any event, parties with only a financial or commercial
interest have no direct legal interest that requires joinder.

[76] I agree with the applicant's submission that there is no need to join the 189 parties
referred to by the Consortium. The declaratory relief in respect of the Consortium
relates to its conduct in failing to comply with the public procurement legal framework.
Insofar as the Department is concerned, the declaratory relief relates to the averre d
abdication of its functions and duties. The suppliers and distributors have no direct legal
interest in such relief. There is accordingly no merit in this issue.

Standing

[77] The Consortium advanced the argument in its supplementary heads of argument
that the applicant lacks standing and has no remedy at its disposal, given that it fails to
challenge the Department Tender, which is the source of the Consortium’s impugned
conduct. Further, the applicant’s failure to participate in the Department Tender deprives
it of standing to challenge that tender.

[78] The applicant indicated that it does not challenge the Department Tender. Its
standing arises in its own right, directly as a participant in the impugned process
conducted by the Consortium, and in the public interest regarding the unlawful
abdication of power, which manifested from 2025 onwards in the implementation of the

Department Tender. As a party affected by the impugned conduct of the Consortium,
the applicant’s rights are affected, and its interest in the lawfulness of the Consortium’s
procurement conduct is not collateral but immediate and personal. It ‘self -evidently’ has
standing by virtue of the public power challenge in issue.

[79] I cannot agree with the Consortium that the applicant lacks standing because it
does not challenge the Department Tender. In my view, it has standing to pursue the
relief in issue as a direct participant in the Stationery Tender and in the public interest,
so far as the declaratory relief involving the Department is concerned. A broad approach
to standing is taken in challenges to the exercise of public power. The Constitutional
Court in Municipal Employees Pension Fund95 held as follows:

In addressing Mr. Swanepoel’s standing, as executor, to bring the application, this Court
said: ‘ Section 38 of the Constitution provides a broad scope for legal standing. Mr.
Swanepoel seeks to act on behalf of the late Ms. Steyn in a review application in which
he alleges that a right in the Bill of Rights has been infringed. He plainly falls within the
purview of section 38. Further, given that the review of public power is a constitutional
matter, a broad approach to standing must be taken . As stated, this is a PAJA review,
which seeks to determine whether administrative action is lawful or not, the outcome of
which binds not only litigating parties, but everyone else. The review of administrative
action therefore attaches not to the party bringing the review (the applicant), but to the
exercise of public power itself. These rights are thus not of a “purely personal nature”.
Therefore, self -evidently, Mr. Swanepoel has standing to be substituted in the review
application. (emphasis supplied)

[80] I should add that the Consortium’s counsel also did not press this issue of standing

[80] I should add that the Consortium’s counsel also did not press this issue of standing
during argument. In any event, it lacks merit.

Subsidiarity


95 Municipal Employees Pension Fund v City of Johannesburg Metropolitan Municipality & Others 2026(2)
SA 345 (CC) para 43.

[81] The Consortium belatedly raised the issue of subsidiarity in its supplementary
heads of argument. The issue was addressed only in passing during oral argument by
its counsel and does not require extensive attention. The argument appears to be that
the applicant’s complaint is based on a statutory illegality that required the applicant to
ground its attack on the statute and that the applicant was precluded from relying on the
Constitution as it is doing.

[82] The applicant contended in its heads of argument that the Consortium's position is
based on a misapprehension of the pleadings and the legal position concerning this
principle. It explained that the pleadings set out the statutory framework
comprehensively to demonstrate that the respondents conducted themselves in
violation thereof, thus impelling a finding of constitutional inconsistency and a
declaration in terms of section 172(1)(a) of the Constitution. The applicant seeks a
constitutional remedy – not the direct enforcement of a constitutional right. The
subsidiarity principle is directed at the latter class of relief and does not bar relief under
section 172(1)(a). It further submitted that, in any event, no legislation fully covers this
aspect, thereby precluding recourse to the constitution rather than the legislation as
provided by the principle.

[83] The subsidiarity principle, as formulated in My Vote Counts96 operates to prevent a
litigant from bypassing legislation enacted to give effect to a constitutional right to
enforce that right directly under the Constitution.

[84] The Constitutional Court indicated that the principle is not a hard and fast rule and
typically applies only where both the following prerequisites are met: (i) the Constitution
imposes a specific obligation on the legislature to pass legislation to give effect to a
constitutional right, such as the provisions of sections 32 and 33 of the Constitution; and

constitutional right, such as the provisions of sections 32 and 33 of the Constitution; and
(ii) the legislature passed legislation it intended to completely and comprehensively give
effect to a constitutional right (i.e. to ‘cover the entire field.’). 97 It applies where a litigant

96 My Vote Counts v Speaker of the National Assembly [2015] ZACC 31 at para 50.
97 Pretorius and another v Transport Pension Fund and another 2019(2) SA 37 (CC) at paras 50-52.

seeks to enforce a constitutional right by resorting to the Constitution while bypassing
extant legislation that gives effect to that right. None of these prerequisites applies in
this case.

[85] It follows that the principle of subsidiarity is neither relevant to the case nor prohibits
these proceedings.

[86] I turn next to the merits.

THE MERITS

[87] As indicated, the issues for determination are, briefly, whether the Consortium was
obliged to comply with section 217 of the Constitution and the associ ated statutes when
undertaking the Stationery Tender, and whether the Department was also so obliged if it
delegated or assigned its procurement decision -making power to the Consortium.
Further, whether the Consortium’s non -award decision was valid. I proceed to set out
and, where necessary, evaluate the arguments of the parties on the merits.

The Applicant’s Argument

[88] The applicant contends that, in view of the uncontested, clear legal position, the
Consortium was obliged to comply with the Department's procurement obligations under
section 217 of the Constitution and the associated statutes when undertaking the
Stationery Tender to procure learning materials. As such, it fulfilled the Department’s
constitutional obligations regarding the functional area of education and the
fundamental right of learners in the province to basic education under section 29 of the
Bill of Rights. It was at all material times exercising a public power and performing a
public function.

[89] Furthermore, even if the Department Tender purported to delegate or assign the
Department’s decision -making power (vested in its accounting officer) regarding the

procurement of learning materials to the Consortium (which it does not), such
delegation or assignment would be proscribed, inter alia, by the PFMA and the Treasury
Regulations. The applicant's case is that there has been no lawful delegation, but rather
a purported one under the SLA. This is because the Department had wholly abdicated
its responsibilities, specifically in respect of procurement, to the Consortium, as appears
from the respondents’ papers. The respondents’ contention that the onus rests on t he
applicant to establish a valid delegation is therefore misguided. The applicant has
established that there is no evidence of compliance with the requirements for a lawful
delegation. It was then for the respondents to prove a valid delegation authorising the
Consortium’s procurement conduct, which they failed to do. They, in fact, deny any
delegation. The Consortium’s conduct in purporting to exercise the Department’s
decision-making power in respect of procurement is accordingly unconstitutional and
invalid and falls to be set aside.

[90] In any event, (so it contended), the explicit purpose of the Department Tender was
to appoint a Project Management Agency to provide services to the Department in
connection with various functions, including procurement. The tender was for the
provision of services, not for the acquisition of goods. It does not appoint the
Consortium as the sole supplier of learning materials to the Department or the schools
in the province. Furthermore, the respondents have failed to e stablish that the strict
requirements for appointing a sole supplier have been satisfied. The tender also did not
vest the Consortium with the Department’s decision -making power regarding
procurement.



The Respondents’ Argument

[91] The cases advanced by the Department and the Consortium largely coincide, and it
is convenient to address them simultaneously and, where appropriate, deal with the
applicant’s relevant response.

(a) Public sector procurement law is inapplicable

[92] The principal argument advanced by the respondents is that in issuing the
Stationery Tender, the Consortium was not acting as an agent of the Department but in
its private capacity, implementing the terms of the Department Tender, which was
awarded to it after the public procurement legal framework was duly complied with.
Pursuant to the conclusion of the SLA on 20 July 2023, the Consortium has been
discharging its contractual responsibilities thereunder. If the SLA is read as a whole and
proper regard is had to its text, context, and purpose, it is apparent that it contemplates
that the Consortium undertakes ‘procurement’ as part of an end -to-end supply
obligation. The Consortium acted as a principal in a centralised supply model procuring
goods in its own name, assuming commercial risk, and supplying the Department in
discharge of its contractual obligations. Contrary to the applicant’s contention, this does
not entail performing a public function or exercising the Department’s public
procurement power. On the facts of the matter, it thus falls outside the ambit of
regulatory control under constitutional and public law.

[93] Furthermore, on the strength of the decision in Famous Idea 98 the applicant has
failed to establish that the non -award decision under the Stationery Tender entails the
exercise of public power, or constitutes administrative action in that: (i) the process was
commercial in nature; (ii) the decision is not sourced in statute, or constrained by a
public law framework of the kind contemplated in section 217 of the Constitution; (iii) it
does not have the hallmarks of public power because it is not regulatory, arises in a
commercial setting, and results in a contract; and (iv) the use of tender terminology and
the appearance of a tender-like process do not make it a public law decision.


98 Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Clear Pharmacy v Government Employees Medical

98 Famous Idea Trading 4 (Pty) Ltd t/a Dely Road Clear Pharmacy v Government Employees Medical
Scheme & Others [2026] the said ACC 5 at paras 66 – 73 (‘Famous Idea’).

[94] The applicant submitted specifically in response to the legal nature of the non -
award decision that the Consortium’s argument fails to engage with the true inquiry into
whether the conduct is administrative in nature. The Constitutional Court in Motau99 set
out that test in these terms:
[34] To determine what constitutes administrative action by asking whether a particular
decision is of an administrative nature may, at first blush, appear to presuppose the
outcome of that inquiry. But the requirement has two important functions. First, it
obliges courts to make a ‘positive decision in each case whether a particular exercise
of public power … is of an administrative character‘. Second, it makes clear that a
decision is not administrative action merely because it does not fall within one of the
listed exclusions in section 1(i) of PAJA. In other words, the requirement propels a
court to undertake a close analysis of the nature of the power under consideration.

[95] The applicant submitted that each of the factors relied upon by the Consortium
indubitably points against the exercise of the power being a private procurement
activity:

(a) First, the function being performed (procurement) is typically administrative. The
SCA has confirmed that again in NAD Property 100. The commercial contractual
relationship resulting from the award does not derogate from the public law
nature of the power exercised.
(b) Second, the fact that the Consortium’s conduct is unrestrained by procurement
statutes is because the Consortium acted contrary to the law by failing to comply
with the legal framework. Put differently, the fact that it was illegal procurement
does not mean it was not procurement.

99Motau above n 65; see also Mzanzi Fire and Security (Pty) Ltd v Durban University of Technology and
others (D1464/2020) [2022] ZAKZDHC 20 (3 March 2022) paras 19-22 & 48.
100 NAD Property above n 60 paras 10 – 12.

(c) Third, the fact that the decision results in a contract for commercial purposes is
irrelevant – all procurement has this feature.
(d) Fourth, while the ‘tender-like’ nature of the Stationery Tender does not determine
the nature of the power exercised, it is nonetheless revealing because the
Consortium had at all times portrayed that it acted in accordance with the
Framework Act obligations and assessed the Stationery Tender as a public
tender. It was only when challenged by the applicant that it changed its stance
and contended that it did not need to comply with the applicable public legal
framework. This is an opportunistic stance prompted by its inability to satisfy the
court that it had conducted the process in accordance with the requirements of
section 217 of the Constitution.

[96] The applicant further submitted that the real issue is whether the power being
exercised (the procurement of public school stationery to discharge the Department’s
obligations) relates to a core constitutional function ( which it clearly does on the
established facts), a point the Consortium’s analysis totally ignores. Also, the
Consortium’s reliance on Famous Idea is misguided. The Constitutional Court found in
that case that GEMS (the first respondent) is not an organ of state, whereas the
Department is. The factors identified in that case point to the power in the present
matter being public, in particular the expenditure of public money for public purposes,
which is not only ‘linked to the functions and powers of govern ment’, but where the
Consortium is ‘taking the place of [the Department]’.

[97] Insofar as the issue of delegation is concerned, the respondents point out that the
SLA provides that the Consortium does not have the power to bind the Department or
enter into agreements on its behalf. This fact, in their view, is decisive of the issue
whether the Consortium wields delegated power of the Department or acts as its agent.

whether the Consortium wields delegated power of the Department or acts as its agent.
The Consortium, in fact, contracts in its own name with third parties, independently of
the Department, as a private commercial enterprise, similar to any successful bidder
acquiring the goods to be supplied under the tender. It is impermissible to stretch the

meaning of section 217 to apply also to successful bidders and require them to comply
with the public procurement legal framework when acquiring goods to be supplied in
compliance with the terms of the relevant tender. This is the effect of the applicant’s
argument. Accordingly, ‘procurement’ in the context of the SLA does not bear the
narrow, technical meaning derived from public procurement legislation as the applicant
contends, but the ordinary commercial sense of a function which is part of a continuous
supply process. The respondents contend that the Consortium was not exercising a
public power or performing a public function and was therefore not bound by the public
procurement legislative framework.

[98] I disagree with the respondents’ contention. In my view, it is readily apparent from
its terms that the Department Tender was not one for the procurement of goods. It was
patently issued to appoint a Project Manager to provide services related, inter alia, to
the procurement of learning materials by the Department, not to supply such materials
to the Department as a sole supplier. Such support from third parties is not unusual,
given the resource and capacity constraints of organs of state and public entities. The
text of the tender bears out this conclusion. The requisite service provider is referred to
as a Project Management Agency.101 The respondents' averment that this was merely a
term of convenience without any legal significance is not supported by the text.
Significantly, the Consortium refers repeatedly to itself in the Stationery Tender as the
‘Agency’. The title of the latter tender makes it plain that the procurement was ‘for the
Eastern Cape Department of Education’. 102 There is also no reference in the text of the
Department Tender to the terms ‘sole supplier’ or ‘centralised supplier’. The preamble to
the SLA indicates that the Department requires a ‘service provider for the provision of

the SLA indicates that the Department requires a ‘service provider for the provision of
project management services’, that the Department issued the bid for ‘a Supplier to
assist the ECDoE in achieving the above objectives’, and that the Supplier [Consortium]
‘has confirmed that it is able and willing to carry out the service’. 103 The
contemporaneous conduct of the relevant parties contradicted the respondents'

101CL 001-171 clause 2.1.
102 CL 008-18 and 008-19 ‘Project Brief’.
103CL 003-130, ‘Preamble’: clauses A, B, and F.

interpretation that the Consortium was appointed as a sole or centralised supplier. The
Department continued to procure learning materials up to the 2025 academic year
directly from the applicant and other suppliers under the 2022 tender, despite the SLA's
conclusion on 20 July 2023.

[99] There is also no evidence of compliance with the peremptory requirements for
appointing a ‘sole supplier’. 104 Furthermore, if the tender were for the procurement of
goods, it would be expected to, for example, identify the goods, stipulate functional
criteria, require bidders to indicate a bid price for such goods, and the like. None of this
appears in the tender. The reason is self -evident that the tender was not for the
procurement of goods. It was a tender for the services of an agent and not of a
principal.

[100] As such, the Consortium was clearly acting at all material times on behalf of the
Department. The Stationery Tender makes it plain, as indicated above, that the learning
materials in question were procured for the Department and thus not for the private
purposes of the Consortium. It is, in any event, difficult to conceive what private purpose
the Consortium might have had to acquire large quantities of school learning materials.
The undoubted ultimate purpose was to supply the needs of learners in the province for
the 2026 academic year. This, in turn, fulfills the Department's constitutional duty. It was
obviously not just a private commercial engagement undertaken by the Consortium
purchasing goods for private use, thereby rendering the public law procurement
principles inapplicable. Its appointment was to provide services as a Project Manager to

104 Special Investigating Unit v Kwane Capital & Others (CA 106/2023) [2024] ZAECMKHC 118 (22
October 2024): ‘[43] Mr Socikwa said that he relied on the sole supplier provision, but there was no
evidence of any market analysis undertaken; [44] I revert to sole supplier procurement. In SASSA, it

was emphasised that the reason for deviation must be rational and objectively verifiable, and not
based on what an official subjectively regarded as impractical; [45] sole supplier procurement
contemplates a situation where there is only one supplier capable of providing the goods procured. It
has been described as "the most exclusionary form of deviation" and "the least transparent of all
award procedures." Volmink, in a very instructive article, noted that the abuse of sole supplier
procurement is well documented and has received much criticism. The State Capture Report
described it as "poorly conceived", "particularly troubling" and "open to abuse". The report
recommended that it should be abolished and that it could not be defended on the basis of
impracticality of the tender procedures.'

manage the department's project of providing learning materials to schools. This is
undoubtedly performing a paragon public function which is subject to the relevant legal
prescripts.

[101] It is clear that the Department's procurement decision -making power, exercised
through its accounting officer, cannot be lawfully delegated or assigned to a private
party, such as the Consortium. This is limited by the PFMA and the Treasury
Regulations to delegatees internal to the Department, as set out above. The
respondents rely on the SLA to justify the Consortium's conduct in procuring learning
materials under the Stationery Tender. The Department confirms in its answering
affidavit that the Department Tender had ‘in it, an element of delegation of functions to
the chosen contractor, the Consortium, in this case’ and that the delegation was not
unlawful.105 Any purported delegation would in any event be unlawful. As indicated, the
respondents’ contention must be rejected that, on the facts, the Consortium was
engaging in a private commercial activity when it procured the learning materials under
the Stationery Tender to fulfill its own contractual obligation to supply the same to the
Department. The applicant correctly submitted that the Consortium’s position is akin to
what had obtained in Grinpal, where the court held that, in the present circumstances,
the private entity steps into the shoes of and is bound by the obligations of the organ of
state.106

[102] In my view (as the parties appeared to have also accepted), the power exercised
in procuring learning materials for schools in the province relates to a core
constitutional function, i.e., education. It thus amounts to public procurement. As the
court pointed out in NAD Property, public procurement is ‘unavoidably a matter of public
law’107 and is ‘subject to laws that concern the exercise of public powers’. 108 It follows
from the undisputed legal position set out above that the procurement undertaken by

from the undisputed legal position set out above that the procurement undertaken by

105 CL 005-21 para 88; at para 92 it is stated that ‘there was no illegal delegation’, thus accepting that a
delegation had occurred.
106 Above para [36] n 55.
107 Above n 60 para 11.
108 Ibid para 12.

the Consortium under the Stationery Tender is a public function subject to the public -
sector procurement legal framework. The respondents’ contention to the contrary is
unfounded. To the extent that the Consortium was taking procurement decisions under
the Stationery Tender, it was purporting to exercise a public power. In these
circumstances, its status as a private entity did not immunise the Consortium from the
duty to comply with the public -sector procurement legal framework that binds the
Department when the Consortium performed the public function and purported to
exercise the public power under the Stationery Tender as aforesaid. It is common
cause that the Consortium did not so comply. Its conduct is unconstitutional and falls to
be set aside.

(b) Failure to impugn the Department Tender

[103] The Consortium set great store by the argument that it is not competent for the
applicant to impugn its conduct under the Stationery Tender without challenging the
validity of the Department Tender or the SLA, which are the sources of such conduct.
Reliance was placed in this regard on Democratic Party 109 as authority for the
proposition that ‘the applicant is not entitled to any relief that effectively flows from the
unconstitutionality of the award of a tender, which has not been so declared by a court.’

[104] The reliance on Democratic Party is misplaced. That matter is distinguishable
because the applicant there sought to impugn a decision on the basis that the statute
authorising the conduct was unconstitutional without formally challenging the validity of
the statute. The court understandably ruled that it was not competent to impugn the
decision on the assumption that the authorising statute was unconstitutional without a
formal challenge. 110 The situation is completely different in the present matter, where
the applicant expressly disavows any challenge to the Department Tender or the SLA. It

the applicant expressly disavows any challenge to the Department Tender or the SLA. It

109 Member of the Executive Council for Development Planning and Local Government, Gauteng v
Democratic Party 1998(4) SA 1157 (CC).
110 Ibid paras 61 and 62.

is the Consortium’s conduct in 2025 in ostensibly implementing the Department Tender
that is challenged.

[105] This stance is not anomalous, as it is a non sequitur to claim that, because the
Consortium's conduct in implementing the Department Tender is unconstitutional, the
Department Tender perforce must also be unconstitutional. It is not inconceivable that
unconstitutional conduct can occur in the implementation of a constitutionally valid
instrument. The facts of this case illustrate this. The Consortium appears to have
provided project management services during 2023 and 2024 (the first two years of the
tender’s existence). There is no challenge to this conduct. In 2025, it started procuring
learning materials itself, which was done by the Department up to that stage, and
exercising the decision-making power to award tenders. This conduct is challenged. Its
unlawful conduct does not mean that the instrument appointing the Consortium as a
service provider must be unconstitutional, but rather that its conduct in 2025 is pro tanto
unconstitutional and invalid.

[106] The Consortium has made common cause with the Department in this regard. It
contended that it would be both paradoxical and incompetent for the court to issue an
order declaring conduct implementing the Department Tender unconstitutional, while
the tender is held to be constitutional. It submitted that such relief is not viable without
challenging the tender itself, which the applicant is expressly not doing. For the reasons
set out in dealing with the Consortium’s argument above, this contention is equally
bereft of merit.

(c) Budgetary control

[107] The Department relies on its control of the budget in response to the applicant’s
case regarding the unlawful delegation or abdication of its powers and functions in
favour of the Consortium.111


111 Para 17.4-5 of reply to the Department, CL 006-13.

[108] However, the Department confirms in its papers that it was not involved in the
remaining decision -making relevant to the procurement process – whether in
determining specifications, evaluating and adjudicating bids, or determining the award.
These are critical features of lawful and accountable procurement, which Treasury
Regulation 16A places within the exclusive purview of the accounting officer and
prescribes in detail how organs of state are to undertake procurement. 112 It is
undisputed that these functions were performed exclusively by the Consortium.

112 The Treasury Regulations stipulate how procurement of goods and services should take place. It
states:

‘16A.6 Procurement of goods and services

16A.6.1 Procurement of goods and services, either by way of quotations or through a bidding
process, must be within the threshold values as determined by the National Treasury.
16A.6.2 A supply chain management system must, in the case of procurement through a bidding
process, provide for-
(a) the adjudication of bids through a bid adjudication committee;
(b) the establishment, composition, and functioning of bid specification, evaluation, and
adjudication committees;
(c) the selection of bid adjudication committee members;
(d) bidding procedures; and (e) the approval of bid evaluation and/or adjudication committee
recommendations.
16A.6.3 The accounting officer or accounting authority must ensure that-
(a) bid documentation and the general conditions of a contract are in accordance with-
(i) the instructions of the National Treasury; or
(ii) the prescripts of the Construction Industry Development Board, in the case of a bid
relating to the construction industry;
(b) bid documentation includes evaluation and adjudication criteria, including the criteria
prescribed in terms of the Preferential Procurement Policy Framework Act, 2000 (Act 5 of
2000) and the Broad-Based Black Economic Empowerment Act, 2003 (Act 53 of 2003);

2000) and the Broad-Based Black Economic Empowerment Act, 2003 (Act 53 of 2003);
(c) bids are advertised in at least the Government Tender Bulletin for a minimum period of 21
days before closure, except in urgent cases when bids may be advertised for such shorter
period as the accounting officer or accounting authority may determine;
(d) awards are published in the Government Tender Bulletin and other media by means of which
the bids were advertised;
(e) contracts relating to information technology are prepared in accordance with the State
Information Technology Act, 1998 (Act 88 of 1998), and any regulations made in terms of that
Act;
(f) Treasury Regulation 16 is complied with when goods or services are procured through public -
private partnerships or as part of a public-private partnership; and
(g) instructions issued by the National Treasury in respect of the appointment of consultants are
complied with.
16A.6.4 If, in a specific case, it is impractical to invite competitive bids, the accounting officer or
accounting authority may procure the required goods or services by other means, provided that
the reasons for deviating from inviting competitive bids must be recorded and approved by the
accounting officer or accounting authority.
16A.6.5 The accounting officer or accounting authority may opt to participate in transversal term
contracts facilitated by the relevant treasury. Should the accounting officer or accounting authority

[109] The Department entirely abdicated these key procurement functions and decision -
making processes, thereby undermining the legislative scheme for accountability. This
is not ameliorated by its budget control, which is only one aspect of procurement
decision-making.

CONCLUSION

[110] It follows from what is set out above that the undisputed failure by the Consortium
to comply with the public procurement legal framework when procuring learning
materials under the Stationery Tender is unconstitutional and falls to be set aside.
Similarly, the purported delegation or abdication of the Department’s procurement
decision-making powers in favour of the consortium, is unconstitutional and lawful.

[111] The respondents contended that the declaratory relief sought is incompetent in the
absence of a concomitant prayer for consequential relief. The applicant pointed to the
obligation in section 172(1)(a) of the Constitution to declare any conduct inconsistent
with the Constitution to be unconstitutional and the accompanying discretion given to
the court to grant any consequential just and equitable relief. The applicant’s position is
that any relief should not disrupt the provision of learning material to learners. The
respondents share this concern. While the applicant asked for the obligatory declaratory
relief in terms of section 172(1)(a), it left any relief in terms of section 172(1)(b) in the
court’s hands. It is the latter stance that the respondent criticised.

[112] In view of the above conclusion on the merits, the declaration of unconstitutionality
sought by the applicant is warranted and mandatory. I agree that the supply of learning
materials should not be interrupted by interfering with the implementation of the

opt to participate in a transversal contract facilitated by the relevant treasury, the accounting
officer or accounting authority may not solicit bids for the same or similar product or service
during the tenure of the transversal term contract.

during the tenure of the transversal term contract.
16A.6.6 The accounting officer or accounting authority may, on behalf of the department,
constitutional institution or public entity, participate in any contract arranged by means of a
competitive bidding process by any other organ of state, subject to the written approval of such
organ of state and the relevant contractors.’

Stationery Tender. The supply for the 2026 academic year has been completed. It is in
the interests of justice and the public interest that this should not be undone and should
be allowed to stand. However, the acquisition of any further rights under the invalid
tender should be proscribed. The relief indicated, therefore, is to undo the tender but not
the supply of learning materials already effected thereunder. This can be achieved by a
declarator per se, as illustrated by the relief granted, inter alia, in Agribee113, where the
court held as follows:

[38] Mr. Rorke, who appeared for the appellants, no longer sought the review and setting
aside of the agreement, but, rather, a declaratory order to the effect that it was invalid.
He submitted that this was the appropriate remedy in the light of the Constitutional
Court's finding as to the effect of such an order in Buffalo City Metropolitan Municipality v
Asla Construction (Pty) Ltd. In that case, Theron J held that the effect of a declarator,
rather than an order setting aside the agreement, was to preserve the accrued rights of
the parties, but not ‘further rights under the invalid agreement’.

[113] I intend to grant similar relief herein.

[114] Insofar as the non -award decision is concerned, it falls to be set aside for all the
reasons set out above. The performance already rendered by suppliers under the
Stationery Tender should not be disturbed and should be allowed to stand. The
applicant has therefore made out a case for the relief in paragraph 4 of the notice of
motion.

[115] In the event the application succeeds, the applicant seeks a punitive costs order
against the respondents. It also seeks the costs occasioned by the postponement of the
matter on 24 March 2026.

[116] In my view, it is not justified to award a punitive costs order against the
respondents. Costs should follow the result and be awarded on the party -party scale,

113 Above in 58.

including the costs of two counsel determined on scale C in respect of senior counsel
and scale B in respect of junior counsel. It is just to direct the respondents to pay the
costs of the postponement of the matter on 24 March 2026.

ORDER

[117] In the result, the following order shall issue:

(a) It is declared that the second, third, and fourth respondents’ (Consortium) and
the first respondent’s (Department) purported delegation, to the Consortium, of the
powers to make procurement decisions on behalf of or in the place of the
Department, or to act as the Accounting Officer of the Department, is
unconstitutional and unlawful.
(b) It is declared that the Consortium and Department’s abdication of and failure to
comply with the procurement obligations under section 217 of the Constitution and
all of the legal and constitutional obligations of the Department, including those
contained in the Department’s Supply Chain Management Policy and the duties of
the Accounting Officer, is unconstitutional and unlawful.
(c) It is declared that the decision of the Consortium not to award the Stationery
Tender to the applicant or not to appoint the applicant as one of the successful
suppliers, conveyed on or about 19 July 2025, is unconstitutional and unlawful, and
is reviewed and set aside.
(d) The costs of thi s application and the wasted costs of 24 March 2026, including
the costs of two counsel, shall be paid by the Department and the Consortium jointly
and severally, on scale C in respect of senior counsel and Scale B in respect of
junior counsel.

______________________
D.O. POTGIETER
JUDGE OF THE HIGH COURT

This judgment is handed down electronically by circulation to the parties or their legal
representatives by email. The date for hand-down is deemed to be 19 June 2026.


APPEARANCE

Counsel for the Applicant: Adv M Du Plessis SC and Adv S Sephton, instructed
by: Garlicke and Bousfield Inc. c/o Huxtable
Attorneys, 26 New Street, Makhanda

Counsel for the First Respondent: Adv AM Bodlani SC, instructed by: Nshenxane
Incorporated, 87 High Street, Fidelity Building,
Makhanda

Counsel for the Second, Third, and
Fourth Respondents: Adv PG Cilliers SC and Adv I Hussain SC,
instructed by: O’Donovan Attorneys c/o
Wheeldon Rushmere & Cole Inc., 119 High
Street, Makhanda

Date of hearing: 4 May 2026 & 5 May 2026
Date of delivery of judgment: 19 June 2026