CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 54/22
In the matter between:
AFROCENTRICS PROJECTS AND SERVICES (PTY)
LIMITED t/a INNOVATIVE DISTRIBUTION Applicant
and
STATE INFORMATION TECHNOLOGY AGENCY
(SITA) SOC LIMITED First Respondent
MICRO FOCUS SOFTWARE (IRELAND) LIMITED Second Respondent
AXIZ (PTY) LIMITED Third Respondent
XUMA TECHNOLOGIES t/a X TELECOMS Fourth Respondent
DEPUTY MINISTER OF COMMUNICATIONS AND
DIGITAL TECHNOLOGIES Fifth Respondent
MINISTER OF FINANCE Sixth Respondent
DIRECTOR-GENERAL DEPARTMENT
OF NATIONAL TREASURY Seventh Respondent
Neutral citation: Afrocentrics P rojects and Service s (Pty) Lt d t/a Innovative
Distribution v State Information Technology Agency (SITA)
SOC Ltd and Others [2023] ZACC 2
Coram: Zondo CJ, Maya DCJ, Baqwa AJ, Kollapen J, Madlanga J,
Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and
Tshiqi J
2
Judgment: Kollapen J (unanimous)
Decided on: 24 January 2023
Summary: Uniform Rule s of Court — rule 30 — court orders in irregular
proceedings —— court order must provide certainty and finality
— competency of court order
ORDER
On appeal from the High Court of South Africa, Gauteng Division, Pretoria, the
following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside.
4. The High Court order of 29 January 2021 is set aside.
5. The matter is remitted to the High Court for the determination of the
rule 30 application.
6. There is no order as to costs, both in the Supreme Court of Appeal and in
this Court.
JUDGMENT
KOLLAPEN J (Zondo CJ, Maya DCJ, Baqwa AJ, Madlanga J, Majiedt J, Mathopo J,
Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring):
KOLLAPEN J
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Introduction
“A court order must bring finality to the dispute, or part of it, to which it applies. The
order must be framed in unambiguous terms and must be capable of being enforced, in
the event of non-compliance.”1
[1] This is an application for leave to appeal against a judgment and order granted
by the High Court of South Africa, Gauteng Division, Pretoria on 29 January 2021
(High Court order). The judgment relates to the interpretation and application of rule 30
of the Uniform Rules of Court. It is the competency of the High Court order that is the
subject of this judgment.
Parties
[2] The applicant is Afrocentrics Projects and Services (Pty) Limited t/a Innovative
Distribution (Afrocentrics), a private company. The first respondent is the State
Information Technology Agency (SITA), a state -owned company in the Republic of
South Africa. The second respondent is Micro Focus Software (Ireland) Limited. The
third respondent is Axiz (Pty) Limited, a private company. The fourth respondent is
Xuma Technologies t/a Telecoms (Pty) Limited , a private company. The
fifth respondent is the Deputy Minister of Communication s and Digital Technologies.
The sixth respondent is the Minister of Finance. The seventh respondent is the
Director–General of National Treasury.
Factual background
[3] On 1 November 2017 the first and second respondents concluded a procurement
agreement (SITA agreement) with the purpose of procuring information and
communications technology software and related services for organs of state.
1 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC) at para 73.
KOLLAPEN J
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[4] The third respondent was, in terms of the SITA ag reement, appointed as a
Fulfilment Agent. The mandate of the Fulfilment Agent was to assist organs of state
with their administration, orders , and payments. The second respondent was entitled ,
in terms of the SITA agreement, to appoint additional Fulfilm ent Agents and ,
accordingly, appointed the applicant as such. The applicant’s appointment was
governed by the terms of a Fulfilment Agent agreement. In order for the applicant to
have access to the relevant information in the terms of the SITA agreement, a Partner
agreement was entered into between the applicant and the second respondent.
[5] On 3 July 2019, t he second respondent terminated both the Fulfilment Agent
agreement and the Partner agreement with the applicant. The applicant launched an
application in the High Cour t seeking an order setting aside the purported termination
of the Fulfilment Agent agreement, as well as the Partner agreement.
[6] The merits of the review application are not dealt with , as this would not have
been required to be determined in the rule 30 application proceedings before the
High Court. They are not before this Court for determination either. A summary of the
relief in the main application is therefore provided merely as background information.
[7] In Part A of the a pplicant’s main application, declaratory relief was sought by
way of having the SITA agreement suspended pending the outcome of the relief sought
in Part B of the main application. The relief sought in Part A was as follows:
“Pending the finalisation of the application contemplated in Part B of this Notice of
Motion, the Framework Agreement e ntered into between the First and Second
Respondent (‘the Framework Agreement ’), effective 1 November 2017 and any
agreement arsing therefrom are hereby suspended.”
[8] In Part B of the main application, the applicant sought an order with three broad
grounds of relief:
(a) that the SITA, Fulfilment Agent and Partner agreements b e reviewed,
declared invalid and be set aside to the extent that they violate
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the Constitution and frustrate the achievement of the Broad-Based Black
Economic Empowerment Act2 (B-BBEE Act);
(b) that the second respondent’s decision to terminate the Fulfilment Agent
agreement be reviewed, declared invalid and set aside to the extent that it
contravenes the Constitution, frustrates the achievement of the
B-BBEE Act and constitutes collusive behaviour or abuse of dominance;
and
(c) that the applicant be compensated for the revenue it would have derived
had the Fulfilment Agent agreement not been terminated
(damages claim).
[9] In response to the main application , the second respondent gave the applicant
written notice that the applicant comply with rule 30(2) and rule 30A(1). The causes of
complaint against the application are summarised as follows:3
(a) The relief sought by the applicant is contradictory and mutually
destructive.
(b) The applicant’s challenge to the validity of the first respondent’s
procurement mandate is baseless.
(c) The relief sought by the applicant under rule 53 of the Rules is not
competent under the circumstances.
(d) The declaratory relief that the applicant seeks is incompetent.
(e) The applicant’s claim for damages is irregular.
[10] Rule 30, headed “Irregular proceedings”, provides as follows:
“(1) A party to a cause in which an irregular step has been taken by any other party
may apply to court to set it aside.
2 53 of 2003.
3 Afrocentrics Projects and Services (Pty) Ltd t/a Innovative Distribution v State Information Technology Agency
(SITA) SOC Ltd, unreported judgment of the Gauteng High Court, Pretoria, Case No 81609/19
(High Court judgment) at para 13.
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(2) An application in terms of subrule (1) shall be on notice to all parties specifying
particulars of the irregularity or impropriety alleg ed, and may be made only
if—
(a) the applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b) the applicant has, within ten days of becoming aware of the step, by
written notice afforded his opponent an opportunit y of removing the
cause of complaint within ten days;
(c) the application is delivered within fifteen days after the expiry of the
second period mentioned in paragraph (b) of subrule (2).
(3) If at the hearing of such application the court is of the opinion that the
proceeding or step is irregular or improper, it may set it aside in whole or in
part, either as against all the parties or as against some of them, and grant
leave to amend or make any such order as to it seems meet.
(4) Until a party has complied with any order of court made against him in terms
of this rule, he shall not take any further step in the cause, save to apply for an
extension of time within which to comply with such order.” (Emphasis added.)
[11] The applicant failed to remove the cause s of complaint and the
second respondent consequently brought interlocutory application s in terms of
rules 30(1), 30A and 6(11) to have these aspects of the applicant’s main application set
aside for allegedly being irregular and non-compliant with the Rules.
[12] In its judgment , the High Court dealt with most of these issues, and made a
number of conclusions, which included that:
(a) The applicant had failed to comply with the formal requirements under
rule 53.
(b) It could not utilise the review proceedings envisaged in rule 53 as the
agreements entered into between the applicant and the second respondent
were private agreements and therefore did not fall within the ambit of
administrative action.
(c) The declaratory relief sought by the applicant was not competent.
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(d) The prayers for relief sought by the applicant w ere mutually destructive,
contradictory, and inconsistent.
(e) The second respondent was prejudiced in its further conduct of the
litigation, because the relief sought in the main application was impossible
to understand and properly respond to.
[13] The High Court made the following order on 29 January 2021:
“1. The applicant’s main application is irregular and improper.
2. The applicant to pay the costs of the application inclusive of the costs of two
counsel.”
[14] The applicant applied to the High Court for leave to appeal against the whole
judgment and order. The application was dismissed with costs. The High Court held
that the grounds of appeal were , in essence , the same issues raised in the main
application an d had been sufficiently canvassed. It held that it was therefore
unnecessary to address each and every ground raised in the application for leave to
appeal. The High Court also took the view that the order in the rule 30 application did
not bring finality to the matter at hand and was not definitive of the rights of the parties.
It went on to indicate that the applicant was at liberty to remove the irregularities found
to exist and to supplement its papers in the main application.
[15] The applicant’s applic ation for special leave to appeal to the Supreme Court
of Appeal was dismissed with costs on the grounds that it was not in the interests of
justice to entertain an appeal at that stage.
Before this Court
[16] The applicant before this Court argued that the following conclusions of the
High Court have a final and definitive effect on the applicant’s main application,
namely that:
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(a) The termination of the a greement by the second respondent does not
amount to administrative action.4
(b) The applicant cannot utilise rule 53 to review and set aside the decision of
the second respondent to terminate the applicant’s appointment.5
(c) The applicant’s review application is not one brought in terms of the
Promotion of Administrative Justice Act.6
(d) The applicant’s claim for damage s is in fact based on the notion of what
it would have earned had its appointment not been terminated.7
(e) The applicant does not satisfy the requirements for the declaratory relief
it seeks in the main application.8
(f) There is no basis for the contention that the termination of the
Fulfilment Agent agreement entered into between the parties violates
section 217 of the Constitution and undermines the B-BBEE Act.9
(g) There is no basis for the contention that the second respondent’s conduct
amounts to collusive behav iour and abuse of dominance, and that
the collusive conduct allegation is best suited for the
Competition Commission.10
[17] On that basis , the applicant took the stance that the High Court had indeed set
aside the review application and thus argued that the se tting aside was irregular.
It argued that the High Court had misdirected itself in that it had set aside a substantial
portion of the application , and in particular the question whether review proceedings
were competent as against the second respondent.
4 Id at para 58.
5 Id.
6 3 of 2000. High Court judgment above n 2 at para 59.
7 Id at para 60.
8 Id at para 67.
9 Id.
10 Id.
KOLLAPEN J
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[18] The applicant therefore argued that the High Court had impermissibly
adjudicated matters of substance in the course of dealing with the rule 30 application.
It argued that the purpose of rule 30 is to deal with alleged irregularities in proceedings
and not to deal with matters of substance.
Directions issued by this Court
[19] This Court issued directions to the parties for the delivery of submissions
addressing the following issues:
(a) Did the High Co urt, in its order of 29 January 2021, set aside the main
application or can it be said that it failed to decide the rule 30 application
by not explicitly ordering whether and to what extent the alleged irregular
proceeding was set aside?
(b) If the High Co urt failed to decide the rule 30 application, can it be said
that it acted outside its powers, with the consequence that its order of
29 January 2021 falls to be set aside? If so, does this Court have
jurisdiction to intervene?
(c) If the High Court set a side the main application, did it do so on grounds
going to the merits of the main application? If so, what were those
grounds and was it permissible for the High Court to determine those
grounds in proceedings in terms of rule 30? If it was not permissi ble to
do so in proceedings in terms of rule 30, does this Court have jurisdiction
to intervene?
[20] This matter is being decided without an oral hearing.
[21] In the submissions filed in response to the directions that were issued,
the applicant argued that when one has regard to the effect of the order on the substance
of the dispute and the reasoning of the High Court, the intention of the Court was clearly
to set aside the main application by way of the rule 30 order. It argued that it is trit e
that when interpret ing a court’s judgment or order, the court’s intention is to be
KOLLAPEN J
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ascertained primarily from the language of the judgment or order as construed according
to the usual, well-known rules of interpretation.11
[22] The second respondent conceded that the High Court did not properly deal with
the rule 30 application in that, despite having found that the second respondent had
proved it would be prejudiced in the further conduct of litigation if the irregularities in
the main application were not re moved, it failed to set aside the application. The
second respondent requested that the matter be remitted to the High Court for the sole
purpose of the High Court dealing with the rule 30 application and making an
appropriate order. It urged this Court not to deal with the merits of the application , as
that would be premature . It said that the rule 30 proceedings had to be brought to
finality, which it submits was not the case in terms of the ineffective order that the
High Court had made.
Analysis
Jurisdiction and leave to appeal
[23] This Court’s jurisdiction is engaged if a matter raises a constitutional issue or
raises an arguable point of law of general public importance which ought to be
considered by this Court. 12 Section 34 of the Constitution guaran tees everyone “the
right to have any dispute that can be resolved by the application of law decided in a fair
public hearing before a court or, where appropriate, another independent and impartial
tribunal or forum”.13 The issue for determination is whether the High Court had made
a competent order. Indeed, this was the limited issue that was the subject of the
directions that the Chief Justice issued to the parties.14
11 Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 304E.
12 Section 167(3)(b) of the Constitution.
13 Emphasis added.
14 Reference has already been made to these in [19].
KOLLAPEN J
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[24] The proper exercise by courts of their powers impacts on the efficacy of courts,
the administration of justice and the rights of litigants to have justiciable disputes
decided.
[25] These are all constit utional issues which engage our j urisdiction. In addition,
there are reasonable prospects of success, and the interests of justice would benefit from
this Court providing the necessary clarity relating to the proper adjudication of rule 30
applications. Leave to appeal ought to be granted.
Merits
[26] Rule 30(3) contemplates a two -stage process. A court must first satisfy itself
that the proceeding or step is irregular or improper. If it is so satisfied, it has the wide
power to set the proceeding aside in its entirety or in part, grant leave to amend or make
any order as it deems fit. These are, no doubt, wide powers. Following its conclusion
that a step or proceeding is irregular or improper, a court however, is required to make
an order.
[27] Court orders are required to bring a level of certainty to the proceedings and
directions issued by a court must not be contained in the judgment but in the concluding
order.15 In Ntshwaqela the Appellate Division held that the order with which the
judgment concludes is—
“the executive part of the judgment which defines what the Court requires to be done
or not done, so that the defendant or respondent, or in some cases the world, may know
it.”16
[28] A court must effectively dispose of the dispute that has come before it , and in
doing so, it must act in accordance with its powers relative to the matter at hand. This
15 Administrator, Cape v Ntshwaqela [1989] ZASCA 167; 1990 (1) SA 705 (A) (Ntshwaqela) at 716B-C.
16 Id at 716B.
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is after all what provides the certainty and finality that parties seek when they bring a
dispute to a court.
[29] The right of access to courts found in section 34 of the Constitution is a right to
have a justicia ble dispute decided by a court. A judgment give s insight into the
reasoning of the Court, how it dealt with the different and often competing submissions
before it, and why it came to a particular conclusion. However, it is ultimately the order
of the court that brings finality to the proceedings and says to the parties what is required
of them or declares what their rights are.
[30] What does th e High Court order in these proceedings say to the parties? It is
ambiguous and incomplete. It simply says the proceedings are irregular . But having
done so, fails to say whether they are set aside, whether the party in default is given
leave to amend or what is meant to happen following the finding of irregularity. The
parties are left in a state of uncertainty regarding the status of the matter. Therefore, it
is clear that the High Court did not make an order in the terms that rule 30 contemplates.
A proper determination of the rule 30 application is required and, in the circumstances
the proper remedy is to refer the matter to the High Court for it to consider the rule 30
application de novo.
[31] Leave to appeal should therefore be granted and the rule 30 order of the
High Court falls to be set aside. The matter must be remitted to the High Court with a
view to bringing the rule 30 proceedings to finality.
[32] On the question of costs, while the applicant is on the right side of the order made
by this Court , it never advanced the case this judgment engages with, nor sought the
relief that I intend to grant. It has not established any entitlement to costs. The
second respondent, to its credit , conceded the incorrectness of the High Court order.
The difficulty in this case was not caused by the action of one or other of the parties,
but by the High Court. I consider that it is just and equitable that there should be no
order as to costs, both in this Court and in the Supreme Court of Appeal.
KOLLAPEN J
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Order
[33] The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside.
4. The High Court order of 29 January 2021 is set aside.
5. The matter is remitted to the High Court for the determination of the
rule 30 application.
6. There is no order as to costs, both in the Supreme Court of Appeal and in
this Court.
For the Applicant:
For the Second Respondent:
V N galwana SC and F Karachi
instructed by Gwina Attorneys
Incorporated
M M L e Roux SC and K Hardy
instructed by Werksmans Attorneys