De Lacy and Another v South African Post Office (CCT 24/10) [2011] ZACC 17; 2011 (9) BCLR 905 (CC) (24 May 2011)

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[2011] ZACC 17
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De Lacy and Another v South African Post Office (CCT 24/10) [2011] ZACC 17; 2011 (9) BCLR 905 (CC) (24 May 2011)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 24/10
[2011]
ZACC 17
In
the matter between:
BRIAN
PATRICK DE LACY
…..................................................................
First
Applicant
BARRY
JACK BEADON
…...................................................................
Second
Applicant
and
SOUTH
AFRICAN POST OFFICE
…..............................................................
Respondent
Heard
on : 8 February 2011
Decided
on : 24 May 2011
JUDGMENT
MOSENEKE
DCJ:
Introduction
In
an application for direct access to this Court, the applicants seek
an order declaring that a judgment of the Supreme Court
of Appeal
delivered on 13 May 2009 by Nugent JA (Farlam, Navsa, Van Heerden
and Mlambo JJA concurring)
1
constitutes an infringement of their right to
equal protection and benefit of the law,
2
the right to a fair hearing
3
and the right to be heard by an independent
court that must apply the law impartially and without fear, favour
or prejudice.
4
In addition, they ask us to set aside the
impugned judgment with its order, and in effect dismiss the appeal
and uphold the
cross appeal that were before the Supreme Court of
Appeal. In the alternative, they seek to move us to remit the
appeal to
that Court for its reconsideration.
The dispute
arises from an award by the South African Post Office (Post Office
or respondent) of a contract to provide an electronic
pension and
benefits payment service on behalf of the government of the North
West Province to Kumo Consortium (Kumo), a competing
tenderer. The
applicants claimed that they had suffered damages because their
consortium, Cornastone e-Commerce Services (Pty)
Ltd (Cornastone),
was not awarded the contract. The High Court upheld the claim in
part and awarded the applicants damages
for loss of profits in the
amount of R60 million with costs. However, on appeal the Supreme
Court of Appeal reversed the decision
of the High Court and
dismissed the claim with costs. This Court has already dismissed
two applications for leave to appeal
directed at setting aside the
same decision of the Supreme Court of Appeal – one in July
2009 and another in May 2010.
It
may well light the path of the reader if, at this early stage, I
relate the latest grievance that the applicants have put
up in this
third attempt to upset the decision of the Supreme Court of Appeal.
Their
founding deposition levels grave accusations against the Supreme
Court of Appeal. They name its judgment a gross miscarriage
of
justice and attribute actual bias to the Court. They charge that
the judgment has not been delivered impartially and without
favour
or prejudice “inasmuch as it was specifically designed to
favour [the Post Office] and prejudice the applicants”.
The
applicants add that at the hearing of the appeal, in their very
words, “[it] was patently obvious to anyone sitting
in the
appeal, as both the second applicant and I did, that Nugent JA had
made up his mind to reverse Hartzenberg J’s
judgment,
irrespective of the evidence and the facts and would do whatever
was necessary to achieve this purpose.”
They
accuse the Court and Nugent JA in particular of “deliberate”
distortion of the facts and say that in no fewer
than 114 separate
instances it wilfully ignored or sought to interpret the evidence
in a manner and to an extent inconsistent
with the record. The
applicants explain in their own words that the Supreme Court of
Appeal, “for reasons best known
to Nugent JA and at the
instance of Nugent JA, decided to find against the applicants and
in order to give effect to such decision,
elected either to
disregard the record for such purpose, or to apply interpretations
to the record that are inconsistent with
any reasonable
understanding of the record.”
After
traversing a few selected examples of the alleged 114 wilful
distortions of the evidence, the applicants conclude their
founding
affidavit by observing that the integrity, probity and impartiality
of our judiciary ought to be above suspicion and
that a commitment
to the values of the Constitution ought to be shown not only in
word but also in deed, which necessitates
an adjudication that is
done properly and fairly. They claim that this is not what happened
with their appeal before the Supreme
Court of Appeal.
This
indictment of premeditated bias is echoed by the applicants’
counsel in written argument. He too hurls several accusations
at
the Court. He submits that it has failed to distinguish between
“facts and own interpretations thereof for the purpose
of
arriving at predetermined findings”. The Court, he submits,
“disregarded” or “nullified” admitted
facts
to support predetermined findings. He makes bold that the Court
“wilfully” ignored the evidence in a manner

inconsistent with the record and that there are 114 examples of
what he calls “grossly incorrect findings” that
are “a
deliberate attempt in certain instances, to justify the award of
the tender to Kumo”. Counsel charges that
the applicants’
complaint is not a matter relating to “findings of fact”
but rather one where the judgment
has not been delivered
impartially and that the integrity, probity and impartiality
required of the judicial function were
not displayed when the Court
decided the appeal. These grave charges were absent from the first
application for leave to appeal.
Background
I say now a
little more about the background. The applicants are Mr Brian
Patrick De Lacy and Mr Barry Jack Beadon. In the North
Gauteng High
Court, Pretoria they sued the Post Office for damages as
cessionaries of Cornastone. Seemingly,
Cornastone
elected to cede its claim in order to avoid litigating against the
Post Office because at the time it worked for
the Post Office in an
unrelated contract.
The applicants
boast experience of more than 20 years in the field of information
technology in the private sector. In 2000,
both are said to have
left comfortable careers in the corporate environment and committed
considerable skill and funds to develop
biometric payment systems
technology. The technology would link the database of personal
information of beneficiaries to remote
pay points and identify
beneficiaries who are entitled to payment with their fingerprints.
The envisaged technology was aimed
at providing a secure electronic
payment service to recipients of government pensions and social
grants. The payment was known
to be plagued by rampant inefficiency
and fraud. The Post Office with its far-flung offices in urban and
rural areas historically
fulfilled the role of the paymaster of the
country. Thus, the prospect of a secure and fraud-proof biometric
payment solution
enthused it.
In February 2002,
the Post Office invited tenders for the supply of a biometric
payment system for the North West Province.
Cornastone was one of
three bidders shortlisted. On 2 September 2002, the tender was
awarded to one of the other bidders, a
consortium known as Kumo.
About this, Cornastone was much unhappy. It complained that the
award of the tender was riddled with
irregularities. The Post
Office, citing “operational considerations”, cancelled
the award to Kumo. Cornastone persisted
in trying to obtain the
tender, but failed. The Post Office chose not to invite fresh
tenders but to develop its own system.
In the
High Court
In three claims
the applicants sought to recover over R514 million in delictual
damages arising from loss of profits. Claim
A was for an amount of
R108 million representing loss of profits Cornastone would have
made had it been awarded the tender.
In Claim B the applicants
sought to recover loss of profits of R406 million on the basis that
had they been awarded the North
West Province tender they would
have been awarded similar contracts in other provinces. Claim C was
premised on unjust enrichment
and debatement of accounts. The
applicants alleged that after withdrawing the tender, the Post
Office used the technology of
Cornastone to set up its own
biometric payment system and was thus unjustly enriched at their
expense. They sought an order
requiring the respondent to render an
account of the biometric payment system it operated, to debate the
account and to pay
the applicants whatever amount may appear to be
due.
The High Court
found that Kumo should have been disqualified at the outset of the
tender process because it did not comply with
the Request for
Proposals (RFP).
5
Kumo provided no fixed consortium agreements, financial statements
or tax certificates. Embedded in the finding that Kumo had
no fixed
consortium agreements is the fact that its tender documents never
disclosed that Labat Africa Ltd (Labat), a black
empowerment
company led by Mr Van Rooyen, was part of its bidding consortium.
6
Even so, on 18 April 2002 at a presentation ordered by the Tender
Board, Mr Van Rooyen presented the tender as if Labat was
the main
tenderer in place of Kumo. The applicants persuaded the High Court
that this late introduction of Labat by Kumo had
been a major
irregularity that was fatal to the award to Kumo.
The High Court
found that one of the members of the Evaluation Committee “was
manipulating things to get the tender awarded
to Kumo at all
cost.”
7
In addition to negligence and incompetence, the High Court found
that there was also “dishonest manipulation and corruption”

in the tender process.
8
The High Court singled out Mr Topper, at the time an employee of
the Post Office, as the person who had been “touting
for a
bribe and a job” and who “fraudulently . . . supported
the Kumo tender.” The High Court elaborated
that Mr Topper
could not have achieved this object alone and that he must have
been acting with the assistance of one or other
unidentified
officials “higher up in the hierarchy”.
9
The High Court’s
reasoning on the core finding of “dishonest manipulation and
corruption” in the tender process
appears from a series of
sweeping factual inferences:
“
It is accepted that
Topper fraudulently, due to circumstances of which only he was
aware, underplayed the Cornastone tender and
supported the Kumo
tender. It could not have been the only irregularity. It must have
been obvious to some of the senior members
that Kumo had to be
disqualified. Labat’s late appearance was patently obvious.
The fact that that did not happen can only
lead to a conclusion that
a person or persons, other than Topper, with influence, did not want
Kumo to leave the scene. It is
unlikely that it was only because of
the good impression that was made by Kumo’s tender bid, Inman
[another person associated
with Kumo] or Van Rooyen. It is
impossible that Topper’s conduct could remain unnoticed unless
there was higher up in the
hierarchy also manipulation coinciding
with Topper’s aims. In my view apart from negligence,
incompetence and Topper’s
manipulation, there must have been
further actions with ulterior motives that led to the non detection
of all the irregularities,
and the decision to award the tender to
Kumo. I am mindful of Mr. Fabricius’s argument that originally
the plaintiffs’
main contention was that Topper’s
actions were the prime reason for the wrong award. I do not agree
with the argument because
before the commencement of the trial the
plaintiffs’ pleadings already alleged improper conduct
throughout the SAPO administration.
Labat’s dramatic entrance
could only have passed unnoticed if influential persons kept their
eyes shut.”
10
In making these
findings, the High Court relied on reports from the Ombudsman and
from a firm of auditors, which pointed to
some suspicion concerning
the tender award. It concluded that, but for the fraudulent conduct
of Post Office employees, Mr
Topper and others unnamed, Cornastone
would have been awarded the tender. It ruled that the Post Office
was vicariously liable,
upheld claim A and, after some adjustment
to the original amount claimed, ordered it to pay the applicants
R60 million being
approximately 50% of their claim for lost
profits.
In relation to
the other claims, the High Court observed that by not inviting
fresh tenders, the Post Office exposed itself
to justified
suspicion that it had used information obtained in the tender
process to develop its own system. Even so, the
High Court found
that the applicants had not proven either claim B or C. It further
reasoned that none of the litigants would
be happy about its
decision and, on its own, granted the applicants and the Post
Office leave to appeal its decision to the
Supreme Court of Appeal.
In the
Supreme Court of Appeal
The Post Office
appealed against the order awarding damages of R60 million. In
turn, the applicants cross-appealed against the
quantum of damages
awarded under claim A and against the dismissal of claim B and in
the alternative, of claim C.
The Supreme Court
of Appeal held that the applicants would be entitled to succeed
only if their claim fell within the decisions
in
Minister of
Finance and Others v Gore NO
11
and
Steenkamp NO v Provincial Tender Board, Eastern Cape
.
12
These cases held that irregularities in a tender process falling
short of dishonesty, or that merely amount to incompetence
or
negligence on the part of those awarding a tender, will not found a
claim for damages by an unsuccessful tenderer. A claim
will lie
only if the award to a competing tenderer resulted from dishonest
or fraudulent conduct, on the part of one or more
officials for
whose conduct the Post Office is vicariously liable, but for which
the contract would have been awarded to the
complainant.
13
The Supreme Court
of Appeal unanimously found that the evidence offered no basis for
the High Court’s finding that Post
Office employees committed
fraud during the tender process.
14
Despite various sweeping allegations of dishonesty, the applicants
were unable to provide any direct evidence of any act of
fraud
committed by any individual. In addition, no allegations of fraud
or dishonesty were put in cross-examination to the
witnesses the
Post Office called to testify.
15
The factual findings of the High Court, it found, rested on
inference. Applying the test for inferential findings in civil

contests, the Court found that the conclusion that there was a
conspiracy to deprive Cornastone of the contract was not the
most
natural or plausible inference from the evidence seen as a whole.
16
The
Court noted that the heart of the applicants’ complaint is
that when points were allocated to each tender in the three

weighted categories, Cornastone received more points in aggregate
but Kumo was nonetheless awarded the contract. The applicants

reasoned that because Cornastone had scored the most points it was
entitled to be awarded the contract and “that there
must have
been a conspiracy dishonestly to deprive it of the contract.”
17
The Court noted that in this case there is no
need for conjecture or inferences on why Cornastone was not awarded
the contract
despite its higher points because what happened “is
revealed explicitly in the evidence.”
18
The explanation
that emerged from the evidence, it held, was that the Evaluation
Committee and the Tender Board took the honest
view that it was not
appropriate to adhere strictly to the general policy of awarding
tenders to the tenderer that scored the
highest points.
19
The Supreme Court of Appeal found it significant that while
Cornastone may have had a higher black economic empowerment

rating,
20
which caused its overall rating to outstrip that of Kumo, Kumo’s
score for technical ability was significantly higher
than
Cornastone’s. The Evaluation Committee recommended to the
Tender Board that Kumo be awarded the contract because
it
considered technological expertise the overriding criterion. The
Court found that the evidence provided “no proper
grounds for
inferring that its view was not honestly held in good faith”.
21
Whether the
Evaluation Committee or the Tender Board was right or wrong in the
view that they took, the Court observed, that
“is neither
here nor there”.
22
The only decisive question is whether “they were honestly of
[the] view” that it was not appropriate to adhere
slavishly
to the general policy that the tenderer that scored the most points
should be awarded the contract.
The reasons
given by the Evaluation Committee for its recommendation to the
Tender Board make it plain that it considered it
in the best
interest of the Post Office that Kumo, whose combined scores for
technical and commercial criteria outstripped
that of Cornastone,
should be awarded the tender despite Cornastone’s superior
black economic empowerment rating. The
Tender Board accepted this
recommendation. The
Court held that there is no reason to
think that they did not hold this view honestly. On the contrary,
“it is perfectly
understandable why they took that view.”
23
The Court concluded that when the evidence is viewed as a whole and
weighed against the probabilities, there are no proper
grounds for
inferring that the Evaluation Committee or subsequently the Tender
Board did not hold that view honestly.
The Supreme Court
of Appeal rejected the inference of the trial court that Mr Topper
dishonestly manipulated the scoring by
members of the technical
Review Panel. It found that undisputed evidence showed that each
evaluator had scored independently
of one another and that there
had been no room for Mr Topper to manipulate other members of the
committee.
In the final
instance, the Supreme Court of Appeal found no evidence of
manipulation or dishonesty on the part of the members
of the Review
Panels, or in the course of the deliberations of and the reporting
by the Evaluation Committee, or on the part
of the Tender Board.
For this conclusion, it found fortification in the fact that the
Evaluation Committee recommended to the
Tender Board the joint
appointment of Cornastone and Kumo to provide the biometric payment
system under tender. That, the Court
reasoned, “is altogether
at odds with an intention on its part to dishonestly prefer Kumo
above Cornastone.”
24
The Court found
that the applicants had failed to discharge the onus that the
contract was awarded to Kumo as a consequence
of dishonesty on the
part of one or more of the officials concerned.
In this Court
On 3 June 2009,
the applicants submitted their first application for leave to
appeal. It was based on what they called “a
technical
constitutional aspect of
dolus directus/do
l
us
eventualis
.” Their papers framed the constitutional issue
as follows:
“
Is an organ of State
vicariously liable in delict for the conduct of its employees, only
in the event where they acted with Dolus
Directus [direct intent],
or, is it also vicariously liable, where they acted with Dolus
Eventualis [indirect intent]?”
Then, the essence
of their contention was that the Supreme Court of Appeal should
have held that indirect intent was sufficient
to render an organ of
state vicariously liable for the wrongs of its employees and that
on the evidence they had established
that the Post Office’s
employees had acted with indirect intent to defraud.
That was the
applicants’ constitutional focus. And yet the bulk of its
papers were devoted to an exhaustive critique of
the factual
findings of the Supreme Court of Appeal. Their grievance had all
the hallmarks of a mere dissatisfaction with factual
findings. The
Post Office opposed the application. On 9 July 2009, this Court
dismissed it for lack of prospects of success.
In the present
application for direct access, the applicants inform that the first
unsuccessful application for leave to appeal
was made on limited
grounds of “indirect intent” on the advice of their
legal representatives, including senior
counsel. This they say led
to the bona fide but mistaken belief that they enjoyed no further
rights of recourse other than
the narrow “technical”
avenue they had pleaded.
During
July of 2009, shortly after this Court had dismissed their
application, the applicants lodged a complaint with the Judicial

Service Commission (JSC)
25
against the judges of the Supreme Court of
Appeal who dismissed their appeal. The applicants tell us they
alleged gross incompetence
and gross misconduct on the part of
Nugent JA.
26
Seemingly, the JSC requested Nugent JA who heard
the appeal to respond to their allegations, but in a letter dated 9
September
2009 Nugent JA declined to respond to accusations
prompted merely by the dissatisfaction of litigants over their
decision.
Eventually, on 21 May 2010 the JSC advised the applicants
that it had dismissed their complaint. It added that any remedy
they
might enjoy is to be found at the Constitutional Court by way
of “leave to appeal the judgment to it, not merely on a

technical point, but on the grounds as set out in your complaint.”
Two months
before, and over nine months after their first application, on 24
March 2010, the applicants approached this Court
again. Their
papers attributed the prolonged delay to the complaint process they
initiated before the JSC. The relief they
sought was twofold. In
the first instance, they sought direct access in terms of rule 18
27
on the ground that the appellate court was tainted by judicial
bias. In the alternative, they asked for leave to appeal in
terms
of rule 19
28
against the same decision and on the same ground.
On 3 May 2010,
the Court dismissed the second application for leave to appeal for
lack of prospects of success. This was for
two reasons. First, the
grounds for appeal were in substance the same as those in the
previous application: namely, that the
Supreme Court of Appeal’s
findings of fact were inconsistent with the evidence. Second,
having already given a final
order on the application for leave on
substantially the same grounds, this Court had discharged its
function, and its authority
over the matter had ceased (
functus
officio
).
29
It therefore had no further jurisdiction over it.
On the same day,
this Court issued directions
in terms of rule
18
30
calling on the Post Office
to file a written
response dealing solely with the question whether the application
for direct access should be granted. Having
considered the written
submission, further directions setting the application for direct
access down for hearing were issued.
Issues
The
directions restricted written argument to:
“
(a)
whether it is in the interests of justice to grant the application
for direct access in view of the fact that, in the application
for
leave to appeal to this Court lodged on 3 June 2009 the applicants
did not raise the grounds on which they now rely;
(b)
the extent to which admissions were made in paragraphs 20.3 and 20.7
of the plea and the significance of those admissions
to the issues
of fact and law the trial court and the Supreme Court of Appeal had
to determine;
(c)
whether the attention of (i) the trial court and (ii) the Supreme
Court of Appeal was drawn to these admissions at any stage
during
the proceedings in either court;
if
so, full details of when, where and in what manner this was done;
if
not, what bearing has the failure of the parties to draw the
attention of either court to these admissions has on the relief
the
applicants are entitled to seek in this Court;
the
exact paragraphs in the judgment of the Supreme Court of Appeal
upon which the applicants rely for their contention that
the
judgment warrants an inference of bias or perceived bias, as well
as references to the precise portions of the record upon
which the
applicants rely in this regard;
the
relief this Court should order, in the event direct access is
granted and the Supreme Court of Appeal judgment is set aside”.
However,
there was an unexpected turn of events. Only two clear court days
before the hearing, on 3 February 2011, counsel for
the applicants
wrote a letter to the Registrar. Save for paragraphs 1 and 6, which
are of no moment, I reproduce its contents
in full:
“
1. .
. . .
2. Having considered the
Respondent’s Heads of Argument and reviewed the Applicants’
Heads of Argument (including
Annexure “B” thereto, which
was prepared by the First Applicant), it would appear that the
Applicants’ Heads
of Argument may be viewed as attributing a
deliberate distortion of the facts as contained in the Record and
actual bias by the
Supreme Court of Appeal and by Nugent JA in
particular.
These are in fact a reflection
of the perceptions of the Applicants which have given rise to their
reasonable apprehension of
bias and on reflection, the Applicants’
Heads of Argument should have made it clear that:
same reflect the Applicants’
perceptions;
the Applicants’ do not
seek to attribute either actual distortion or actual bias, beyond
such perception of a reasonable
apprehension of bias;
this aspect of the Argument
will be confined to a reasonable apprehension of bias inter alia
on the basis that the factual
findings are so unreasonable on the
Record and so out of kilter with the evidence led, that it is
explicable only on the
grounds of bias. (See Judgment in
Bernert
v ABSA Bank
CCT37/10, para 103).
The language used in asserting
a deliberate distortion of the facts and actual bias, without
emphasising that these are in fact
a reflection of the perceptions
of the Applicants, is regretted and any such assertions are
unqualifiedly withdrawn.
An unconditional apology is
accordingly tendered to all parties concerned and particularly to
the Supreme Court of Appeal.
. . . .
You are kindly requested to
place this letter before the Judges of the Constitutional Court.
I have also requested the
Applicants’ Attorneys of Record to furnish a copy of this
letter to the Respondent’s Attorneys
of Record.
Yours faithfully
Advocate M Nowitz”
The
contents of the letter are truly remarkable. After all, over nearly
two years, the same applicants laid bare their smouldering

grievance over the Court decision that overturned their handsome
award of damages. Before the JSC they complained that, by
holding
against them, the judges had made themselves guilty of gross
misconduct and gross incompetence – a charge which
if proven
may have led to their removal from office.
31
Under oath before this Court they made acerbic
and unremitting accusations of deliberate distortions of evidence
and premeditated
and actual bias against a panel of five appellate
judges.
On
most occasions they singled out Nugent JA who wrote for the Court
and heaped the scorn of dishonest factual findings and
deliberate
bias on him. On other occasions they heaped the scorn of dishonest
factual findings and deliberate bias on the entire
panel. The
applicants did not even bother to proffer either a motive or
purpose that may have collectively moved an entire
bench of senior
judges towards the egregious judicial impropriety attributed to
them. And now, by a belated letter from their
counsel, not even a
statement under oath from counsel or litigant, we are informed that
the applicants regret having made these
damning accusations which
they unqualifiedly sought to withdraw. What is more, they tendered
an unconditional apology to all
concerned and particularly to the
Supreme Court of Appeal.
As
was to be expected, on the morning of the hearing, as counsel for
the applicants rose, this startling turn of events took
precedence.
From the bar, he assured the Court that he had written the letter
at the instance and firm mandate of his clients,
one of whom, he
said, was present in the courtroom. He did not say why he and not
his instructing attorney wrote the letter.
He conceded that the
letter amounted to a radical departure from the sworn affidavits of
his clients and from his own written
argument attributing judicial
dishonesty to the appellate court and to Nugent JA in particular.
Counsel repeated that his clients
no longer attributed deliberate
distortion or actual bias to the appellate court. They regretted
any like previous assertions,
which were unqualifiedly withdrawn.
Counsel restated his clients’ unconditional apology and
particularly to the judges
concerned. He undertook to convey the
apology to the Supreme Court of Appeal promptly.
It
is so that ordinarily a court relies on or accepts statements made
to it by counsel from the bar without the necessity of
an
affidavit. They ordinarily amount to credible assurances by an
officer of the court. However, different considerations apply
where
statements made by counsel from the bar substantially depart from
sworn statements made by clients. Here the statements
by counsel
from the bar were of a different order. They consisted of
unqualified retractions of vital accusations in the applicants’

founding affidavit and written argument and an unreserved apology
to the judges concerned, made in a letter authored by counsel
and
not in an affidavit sworn to by his clients. For this, no adequate
explanation was forthcoming. Nor could counsel explain
why this
fundamental change to the basis of his clients’ case and the
circumstances that prompted it were made so belatedly.
Counsel
however made it clear that, although his clients’ founding
affidavits had remained the same, their contentions
would be
confined to a claim that they had only a reasonable apprehension of
bias on the ground that the factual findings are
so unreasonable on
the record and so out of kilter with the evidence that they are
explicable only on the ground of bias. Of
course, this astonishing
turnabout poses the question whether, without more, a party may by
mere letter or statements from
the bar, abandon the substance of
its founding affidavit and thereby opt to alter the basis of the
relief it seeks. I revert
to this matter when I consider whether it
is in interests of justice to grant the direct access application.
Despite
these twists and turns, it seems to me that we are still obliged to
consider whether an adequate case has been made
out for the grant
of direct access. Relevant to that enquiry is the question whether
the applicants have, on the papers, pleaded
the case they now seek
to embrace. That case now is whether they have established a
reasonable apprehension of bias for the
reason that the factual
findings of the appeal court are so unreasonable, or so out of
kilter with the evidence that they are
explicable only on the
grounds of bias.
Thus
the central issue remains whether the application for direct access
should be granted. In turn, that enquiry spawns a number
of
sub-enquiries which are:
whether
the matter raises a constitutional issue;
if
so, whether it is in the interests of justice to grant direct
access. Core to that enquiry would be:
whether
the claim of perceived bias carries a reasonable prospect of
success;
whether
there are 114 instances of factual error that are explicable only
on the grounds of bias;
whether,
in the light of the admissions in paragraph 20.3 and 20.7 of the
plea, the Supreme Court of Appeal was obliged to accept
as common
cause facts that there was gross misconduct, fraud and corruption
in the tender process;
(c) what relief, if any, should be granted; and
(d) what costs order should be made?
Brief
description of submissions of the parties
I
restate briefly the submissions of the parties in response to this
Court’s directions.
32
As we have seen, the applicants have jettisoned the case premised
on deliberate bias. This does mean that their papers are
bereft of
the context within which the fear of judicial partiality has
arisen. Their initial sworn accusations are misaligned
with the
case they now seek to make. They urged upon us to decide their case
on the traction that the factual findings they
impugn are so
unreasonable and out of kilter with the record that they can be
explained only on the ground of bias. For this
contention, they
rely on the same so-called 114 factual errors they had advanced to
establish actual bias.
The Post Office
stuck to its original submissions. It argued that no special
circumstances have been advanced for the grant
of direct access.
This was
in substance a disguised
application for leave to appeal on the facts. The applicants have
attempted to disguise an appeal on
the facts “by making
scandalous allegations of incompetence” against the Supreme
Court of Appeal. The second application
for leave to appeal and the
applicants’ JSC complaint amounted to no less than
scandalising the Supreme Court of Appeal.
More so, maintained the
Post Office, no explanation had been offered for why the grounds
for direct access had not been canvassed
in the first application
for leave to appeal.
Turning to bias,
the Post Office denied that the Supreme Court of Appeal hearing was
unfairly conducted. It asserted that the
judgment was factually and
legally sound and that the inference of fraud on the part of its
employees is plainly inconsistent
with the proven facts
.
Should
the application for direct access be granted?
The
threshold requirements for granting direct access are whether the
dispute concerns a constitutional issue and whether it
is in the
interest of justice to do so. The first requirement ought not to
detain us.
A
constitutional issue?
A
complaint of perceived judicial bias is a constitutional matter.
33
There are several reasons for this, but stating
a few should make the point. Judicial authority is an integral and
indispensible
cog of our constitutional architecture. Our supreme
law vests judicial authority in the courts.
34
It commands that courts must function without
fear, favour or prejudice, and subject only to the Constitution and
the law. It
follows that, at all times, the judicial function must
be exercised in accordance with the Constitution. At a bare minimum

this means that courts must act not only independently but also
without bias, with unremitting fidelity to the law, and must be

seen to be doing so.
Thus
when a litigant complains that a judicial officer has acted with
bias or perceived bias he is in effect saying that the
judicial
officer has breached the Constitution and her oath of office. This
is so because courts are final arbiters on the
meaning of the
Constitution and the law – a high duty that must be
discharged without real or perceived bias. The issue
is one of
grave constitutional concern that demands the unfailing attention
of the court seized with the complaint.
Here,
too, the trenchant indictment of judicial bias or of its
apprehension instantly attracted constitutional concern. Another

consideration is that once a claim of judicial bias is made, the
judicial officer concerned would generally be entitled to
a
definitive outcome on the accusations. An accusation of bias,
however frivolous, if not dispelled, may tarnish the judicial

officer concerned and corrode public confidence in the judiciary as
a whole. We are indeed seized with a constitutional matter.
Is it
in the interests of justice to grant direct access?
Section
167(6)
35
of the Constitution requires this Court to allow
a person to bring a matter directly should it be in the interests
of justice
to do so. Where the interests of justice lie depends on
the outcome of a meticulous weighing-up of relevant considerations.

Chief of these, but not solely decisive, would be whether there are
prospects of success. For instance, the public importance
of the
issue raised or its impact on the administration of justice may
well favour granting direct access in a matter in which
prospects
of success may be open to some doubt. This Court would permit
direct access only in exceptional circumstances.
36
This is particularly so in a dispute where other
courts too may have jurisdiction to decide the dispute.
Here,
several considerations relevant to the interests of justice spring
to the fore. Foremost would be, (a) whether the newly
formulated
claim of perceived bias is likely to succeed. This would not be the
only consideration. We would also have to ask:
(b) whether the
complaint of apprehension of bias could have been decided by a
court other than this one; (c) whether the applicants
have
previously approached this Court seeking mainly the same relief;
(d) what the importance of the issues is to the public
interest and
to the administration of justice; (e) whether the applicants have
furnished an adequate explanation for the delay
before applying for
direct access; (f) and whether the applicants have furnished an
adequate explanation for making trenchant
accusations of deliberate
judicial bias, ulterior motive and impropriety, only later to
withdraw them and tender an unqualified
apology. The weight to be
placed on these considerations will indeed depend much on whether
the relief sought bears any prospect
of success. I will look at
each of these factors more closely.
Before
doing so, it is well to say this at the outset. As will transpire,
the applicants’ attempt to obtain direct access
to this Court
entailed an attempt to impugn the credibility of the Supreme Court
of Appeal judgment, and to sully the integrity
of the judges who
decided the matter, which was thoroughly without warrant.
Relevant
considerations
Earlier
I pointed out that there are considerations, other than prospects
of success, relevant to the question whether direct
access should
be granted. It is convenient that I get them out of the way before
I consider the merits of the claim of bias.
The
first is whether another court could have decided the dispute in
issue. In this case, not. The complaint of apprehension
of bias is
against judges of the Supreme Court of Appeal and after they have
delivered their judgment. This means that only
this Court may
resolve the complaint provided it raises a constitutional issue. It
certainly does. Thus this Court is the only
one the applicants may
approach. For that reason, they need not establish exceptional
circumstances in order to gain direct
access. If it were otherwise,
that requirement would place an insurmountable hurdle for a
litigant similarly placed. In
Glenister
v President of the Republic of South Africa and Others
,
37
we recognised this hurdle and held that where an
applicant approaches this Court by way of direct access and it was
the only
one that could entertain the complaint, the litigant would
be entitled to approach this Court as of right and not only when

exceptional circumstances exist.
Thus,
aside from the constitutional importance of the complaint of
judicial bias the applicants were entitled to approach this
Court
by way of direct access in as much as this is the only Court that
may hear their complaint and grant them relief. This
is indeed a
relevant consideration in favour of granting direct access.
However, it cannot be seen in isolation.
Have
the applicants approached this Court before, seeking the same
relief? That is another relevant factor. We have seen that
the
present approach is the third attempt by the applicants to overturn
the decision of the Supreme Court of Appeal.
38
This Court has considered their motions twice
and on as many occasions dismissed their applications for leave to
appeal. The
first application was mounted during June 2009,
premised on the “technical issue” related to indirect
intent to
defraud. Nine months later, during March 2010, the
applicants sought leave to appeal on the grounds of actual bias and
wilful
distortion of the facts on record.
The
constitutional issues in the two applications diverged but the
common feature was the exhaustive attack on the findings
of the
Supreme Court of Appeal. Save for carrying a new label of actual or
perceived bias, the direct access application too
amounts to no
more than a raging discontent over the factual findings of the
Supreme Court of Appeal.
39
Although the complaint is clothed in the apparel
of actual or perceived bias, it rests on the same scathing attack
of the Court’s
findings.
It
is, indeed, not open to a litigant whose application for leave to
appeal is dismissed to approach the same court for the
same relief
under the guise of direct access. If that were permitted, abuse of
court process would result and misguided applications
would
multiply. The principle that once a court has considered a matter
on the merits, it may not decide it again would be
severely
undermined if direct access were granted.
A
further consideration is whether the applicants have furnished
adequate explanation for the delay before applying for direct

access. Once this Court had refused their first application for
leave on 17 July 2009, they lodged a complaint against the
judges
with the JSC alleging gross incompetence and gross misconduct on
the part of Nugent JA.
40
On 9 September 2009, Nugent JA wrote:
“
The
complainant was the unsuccessful party in the appeal. It is
generally accepted judicial practice not to engage in debate with
a
litigant on the merits of a case that has been finalised.”
Eventually,
on 25 March 2010, the JSC dismissed the complaint. The direct access
application was initiated only on 23 March 2010
in this Court –
more than nine months after the first application for leave was
dismissed and some ten months after the
judgment of the Supreme
Court of Appeal. The applicants did not furnish a satisfactory
explanation for the delay.
When
applicants approach this Court by way of leave to appeal or direct
access with a view to setting aside a decision of another
court
they must do so within the prescribed time after the decision. If
there is a delay in bringing their application an adequate

explanation has to be furnished for the delay.
41
Absent an adequate explanation in an appropriate
case, the application must fail.
It
must be added that a litigant who raises a complaint of bias or its
apprehension must do so at the earliest possible opportunity,

setting out the details of the time and circumstances under which
the apprehension of bias would have arisen.
42
These details would be singularly important in
assessing whether the apprehension advanced is reasonable. Here the
applicants
have neither furnished an explanation for the delay nor
any details of the circumstances under which their apprehension of

bias has arisen. The applicants have furnished no explanation
except for narrating their failed exploits at the JSC. One would

imagine that their legal representatives would have had them know,
before the JSC did so, that only this Court may entertain
a claim
of judicial bias in relation to a decision of the Supreme Court of
Appeal.
It
escapes me why their complaint to the JSC of gross incompetence and
gross misconduct stood in the way of their approaching
this Court
as they ultimately did nine months later. What is more, under oath,
they criticise Nugent JA for his response to
the JSC alleging that
in effect he—
“
is
simply saying that his findings are beyond reproach and that he does
not have to answer to anybody regarding his conduct, which
resulted
in no less than 114 instances where he ignored the Record”.
(Emphasis removed.)
Here
again the applicants have resorted to baseless and gratuitous
attacks. It is a time-honoured judicial practice not to engage
in
debate with a litigant on the merits of a case that has been
concluded. The wisdom of this practice is self-evident.
However,
the purpose of the practice is not to shield the judiciary from
legitimate criticism or robust debate of the judgments
they hand
down. In
State v Mamabolo
, this Court reminded us all that:
“
The
primary function of the Judiciary today is happily to protect a just
rather than an unjust legal order. Yet criticism, however
robust and
painful, is as necessary as ever. It is not just the public that has
the right to scrutinise the Judiciary, but the
Judiciary that has
the right to have its activities subjected to the most rigorous
critique. The health and strength of the Judiciary,
and its capacity
to fulfil time-honoured functions in new and rapidly changing
circumstances, demand no less. There are no intrinsically
closed
areas in an open and democratic society.”
43
As
we have seen, the applicants failed to furnish a proper explanation
for a delay of many months. They have not presented any
other
compelling reason why, notwithstanding the delay, it would be in
the interests of justice to permit them to approach
this Court by
way of direct access.
A
final consideration, before I discuss the merits of the bias claim,
is whether the applicants have furnished an adequate explanation

for two crucial matters. The first is why the allegations of bias,
ulterior motive and impropriety on the part of five appellate

judges were not made in the first two applications before this
Court. The second is why they, under oath, made these trenchant

accusations only later to withdraw them and tender an unqualified
apology in a letter by their counsel. The applicants have
not
explained adequately their grievous conduct. If anything, it points
to a remarkable lack of good faith in vindicating rights
that they
might have imagined they have.
For
several months the applicants mounted a crusade of unwarranted and
unfounded allegations of the worst kind against judges
whose
decision they hated to live with. The applicants charged volubly to
all concerned that these judges breached their oath
of office and
with ulterior motives returned a decision which they knew not to be
supported by the facts at hand. The scurrilous
charges had a
distinct tendency to bring into disrepute not only the five
appellate court judges concerned, but also all of
our judiciary.
Even now, we still do not know why they resorted to this kind of
damaging crusade because they have not sworn
to the circumstances
under which they chose to retract unconditionally the scurrilous
allegations and apologise. These circumstances
are indeed a
powerful consideration on whether to grant an application for
direct access.
Prospects
of success on the claim of perceived bias
For
the applicants to succeed they have to persuade us that their claim
bears some prospects of success. They must establish
a reasonable
apprehension of partiality. Before examining whether the facts they
advance do bolster their claim, I restate
first the legal
principles that govern a complaint of judicial bias.
Recently,
in
Bernert v Absa Bank Ltd
44
this Court had occasion to revisit the
overarching legal principle that governs allegations of judicial
bias. A judicial officer
who sits on a case in which there exists a
reasonable apprehension that he or she might be biased acts in a
manner that is
inconsistent with the Constitution.
45
Our judicial system requires that courts must
not only be impartial and independent but that they must also be
seen to be so.
Thus an apprehension of bias, if reasonable, would
entitle an aggrieved litigant to have the adverse decision set
aside.
We
explained that a claim of an apprehension of bias is assessed with
regard to the presumption of judicial impartiality and
the
double-requirement of reasonableness. About the presumption, we
said:
“
The presumption of
impartiality and the double-requirement of reasonableness underscore
the formidable nature of the burden resting
upon the litigant who
alleges bias or its apprehension. The idea is not to permit a
disgruntled litigant to successfully complain
of bias simply because
the judicial officer has ruled against him or her. Nor should
litigants be encouraged to believe that,
by seeking the
disqualification of a judicial officer, they will have their case
heard by another judicial officer who is likely
to decide the case
in their favour. Judicial officers have a duty to sit in all cases
in which they are not disqualified from
sitting. This flows from
their duty to exercise their judicial functions. As has been rightly
observed, ‘[j]udges do not
choose their cases; and litigants
do not choose their judges.’ An application for recusal should
not prevail unless it
is based on substantial grounds for contending
a reasonable apprehension of bias.”
46
(Footnotes omitted.)
And
about the double-requirement of reasonableness, we stressed:
“
Both the person who
apprehends bias and the apprehension itself must be reasonable. As
we pointed out in
SACCAWU
,
‘the two-fold emphasis . . . serve[s] to underscore the weight
of the burden resting on a person alleging judicial bias
or its
appearance.’ This double-requirement of reasonableness also
‘highlights the fact that mere apprehensiveness
on the part of
a litigant that a judge will be biased – even a
strongly and honestly felt anxiety – is
not enough.’
The court must carefully scrutinise the apprehension to determine
whether it is, in all the circumstances,
a reasonable one.”
47
(Footnotes omitted.)
What
remains is to consider whether the applicants have shown a
reasonable apprehension of bias. They advance only one basis
for
their perceived bias. They allege that the Supreme Court of Appeal
committed 114 factual errors which are not borne out
by the record.
To advance this cause, they adopt the formulation of this Court in
State v Basson
48
and
Bernert
49
where we stated that a mistake on the facts will
only give rise to a reasonable apprehension of bias if it is so
unreasonable
on the record that it is inexplicable except on the
basis of bias.
In
both cases we held that a mistake on the facts, even if it is so
shown, is not ordinarily sufficient on its own to justify
a
reasonable apprehension of bias. A litigant who relies on bias
based on incorrect factual findings indeed carries the onus
of
establishing the partiality. And this Court has said that this is
indeed a formidable onus to discharge. For that to happen,
an
applicant must, in the first instance, show that the factual
findings are erroneous on the appeal record. This is a threshold

requirement. If it is not met “the question of
unreasonableness will not arise, and the litigant fails at the
first
hurdle.”
50
However, if a mistake on the facts is shown it
will justify a reasonable apprehension of bias only if the error
relates to a
material fact and it is so unreasonable that it is
inexplicable except on the grounds of bias.
Are
there 114 factual errors?
The
stomping ground of the applicants is that the Supreme Court of
Appeal ignored the record or interpreted the evidence in
a manner,
and to an extent, inconsistent with the record in no less than 114
separate instances. This they say attracts an
inference of bias. In
dealing with portions of the record required for the determination
of their application in this Court,
their practice note states that
the entire record (which covers a 77-day trial and consists of 137
volumes) is necessary. However,
in the end, they did not lodge the
full record with this Court, but only nine volumes. They also made
it known that they will
rely only on the evidence contained in
volumes 6, 7, 8 and 9. These volumes contain cherry-picked parts of
the main record.
Of its own accord, this Court has procured and
reviewed the full record of 137 volumes that was placed before the
Supreme Court
of Appeal.
It
is however significant that nowhere in their founding affidavit or
written argument do the applicants deal with 114 instances
of
factual error. This they say they would not do “[i]n order
not to burden this Honourable Court with all 114 instances
as
afore-referred to, (same being available, if so required by this
Honourable Court)”. They say they would “highlight
. .
. a few main examples of the very obvious differing findings of
fact”. The “few main examples” turn out
to be six
findings:
the
evidence did not show that Mr Topper, an employee of the Post
Office, fraudulently supported the bid of Kumo;
the
appearance of Labat at the presentation of 18 April 2002 had no
material effect on the evaluation and award of the tender
and did
not indicate a dishonest manipulation of the tender process by Post
Office officials;
the
evidence does not establish dishonesty and fraud in the tender
process;
the
technical evaluation took place in the presence of a representative
of the auditing firm KPMG;
the
biometric system proposed by Cornastone had yet to be fully
developed and tested and the Evaluation Committee had good and

rational grounds to have had greater confidence in the Kumo system
as reflected in the differentials in their scores; and
the
forensic report by Ernst & Young is inadmissible evidence.
In
addition there was a generalised complaint that the findings of the
Supreme Court of Appeal on tender requirements were wrong.
It was
also contended that the Supreme Court of Appeal did not take account
of the fact that the relevant fraud had been admitted
in the
pleadings.
I
have reviewed all the alleged factual errors the applicants have
listed. Firstly, they are not 114 in number. Virtually all
are
sub-sets of the six main factual findings I have already listed.
Secondly, those which fall outside the rubric of their
six main
complaints are neither factual errors nor decisive of their case.
For instance, the applicants would list as a factual
error, an
inference from the facts different to the one arrived at by the
Supreme Court Appeal without pointing to an underlying
factual
mistake. Even where a factual mistake has been pointed out it is no
more than a mere misdirection which cannot be said
to induce an
apprehension of bias.
Therefore,
as I embark on a review of the impugned factual findings, I must
remind myself of three important requirements in
a case where
applicants rely on a reasonable apprehension of bias based on
incorrect factual findings. They must show, as we
have found in
Bernert
,
51
the following. Firstly, that the impugned
findings are not supported by the record. Secondly, that the
findings are not mere
misdirections but are errors that are so
unreasonable that they are inexplicable except on the basis of a
reasonable apprehension
of bias. To these two requirements one more
must be added: that the factual findings complained of are material
to the outcome
of the underlying claim. It is self-evident that if
an error complained of is immaterial or unrelated to the outcome of
the
case, then it can hardly be said to induce a reasonable
apprehension of bias.
Did Mr
Topper fraudulently support the bid of Kumo?
Arguably,
the single most crucial finding the High Court made in favour of
the applicants’ case was the inference that
Mr Topper
“dishonestly manipulated the scoring by the members” of
the Tender Evaluation Committee. At the time
of the tender process
he was an employee of the Post Office, the tender project sponsor
and a member of the Tender Evaluation
Committee. The High Court
accepted that Mr Topper acted fraudulently “due to
circumstances of which only he was aware”
and that he
“underplayed the Cornastone tender and supported the Kumo
tender.” It further inferred that “[i]t
must have been
obvious to some of the senior members that Kumo had to be
disqualified.”
52
The High Court added that Mr Topper acted
fraudulently in the scope of
his
employment and again inferred that “there must have been
other employees who could have influenced the outcome of
the
process to a different result than to what it came, who corruptly
turned a blind eye.”
53
The
Supreme Court of Appeal evaluated the evidence differently. It
found that there was no basis in the evidence, whether directly
or
by inference, for the finding by the High Court that Mr Topper
fraudulently supported the Kumo bid. For this pivotal finding
it
furnished several reasons. A few should suffice. It found that the
evidence did not support the conclusion that Mr Topper
was “touting
for bribes” and that the subsequent allegations of
“extortion” by the Ombudsman were baseless,
as the
applicants well knew. What is more, the Supreme Court of Appeal
found, Mr De Lacy testified that throughout the tender
process he
was given no reason to think that Mr Topper was in some way
dishonestly going about his task.
Relying
on the findings made by the auditors, Ernst & Young, who were
appointed on the recommendation of the Ombudsman,
the applicants
sought to persuade the Supreme Court of Appeal to find that Mr
Topper dishonestly manipulated the process in
order to favour the
Kumo bid. The Court declined the invitation. It ruled that the
findings of the auditors were inadmissible
hearsay evidence and
that, in any event, their report makes plain that their conclusions
were “tentative” and “based
on an incomplete
examination of all the evidence” and “subject to
various disclaimers.”
54
The Court took the view that in those
circumstances the report could not be accorded any weight and also
that it is for a court
and not auditors to decide the case upon
evidence that is properly before it.
In relation to
the role of Mr Topper in the technical evaluation of the two bids,
the Supreme Court of Appeal found that undisputed
evidence shows
that each evaluator had scored independently of one another and
that there had been no room for Mr Topper to
manipulate other
members of the committee. Moreover, neither Mr Prins nor Ms
Richter, two members of the committee, complained
that Mr Topper
sought to influence improperly their technical evaluation of the
two bids.
Then the Court
made this incisive observation about Mr Topper:
“
Certainly Topper
explained features of the tenders to the others, but that is to be
expected, bearing in mind that he had greater
technical knowledge
than they did. Had he been intent on manipulating the scores so as
to favour Kumo, one would expect that
his scores would be at least
as high as the highest score of the others. Yet his scores are more
favourable to Cornastone than
the scores of Prins (described by the
court below as a ‘decent and solid citizen’). And
Richter scored the two tenders
almost equally, which is hardly
consistent with manipulation by Topper so as to favour Kumo.”
55
The
Supreme Court of Appeal discounted the allegations of dishonest
support for the Kumo bid on another cogent ground. On 22
April 2002
and again on 18 June 2002 the Evaluation Committee, on which Mr
Topper served, recommended to the Tender Board that
“no one
provider could be singled out to supply a total solution” and
that both Kumo and Cornastone be appointed
to provide a total
solution. The recommendation listed various parts of the systems
that should be provided by each. The Court
saw this inclusive
recommendation as being at variance with a dishonest and partisan
purpose. It held that there simply can
be no basis in the evidence
to suggest, as the applicants do, that Mr Topper dishonestly
favoured the bid by Kumo, or as they
say Labat, or that there was
dishonesty on the part of the officials concerned in order to
disadvantage Cornastone.
It
seems to me there is no obvious factual error which the Supreme
Court of Appeal has made. What is apparent is that in the
absence
of direct evidence of dishonesty and corrupt manipulation the two
courts have made entirely different inferences. One
of the obvious
reasons for the divergent conclusion on Mr Topper’s conduct
is that the High Court made much of the contents
of the reports by
the Ombudsman and the auditors. The Supreme Court of Appeal
discounted them as hearsay or of little evidentiary
weight. In any
event, even if there were errors of fact in evaluating Mr Topper’s
conduct in relation to the tender process,
it seems plain to me
that the reasoning of the Supreme Court of Appeal on the factual
findings is as reasonable as it is cogent.
Besides, the decision
whether the report of the Ombudsman or of the auditors is
admissible or ought to carry any weight is
a matter of law which in
my view is not open to any criticism.
It
must be borne in mind that, in exercising its appellate
jurisdiction, a court is entitled to review findings of fact, and

so too unsatisfactory reasoning on the part of a lower court. In
emphasising this point, in
Bernert
, we held that:
“
The principle that an
appellate court will not ordinarily interfere with a factual finding
by a trial court is not an inflexible
rule. It is a recognition of
the advantages that the trial court enjoys, which the appellate
court does not. These advantages
flow from observing and hearing
witnesses, as opposed to reading ‘the cold printed word’.
The main advantage being
the opportunity to observe the demeanour of
the witnesses. But this rule of practice should not be used to ‘tie
the hands
of appellate courts’. It should be used to assist,
and not to hamper, an appellate court to do justice to the case
before
it. Thus, where there is a misdirection on the facts by the
trial court, the appellate court is entitled to disregard the
findings
on facts, and come to its own conclusion on the facts as
they appear on the record. Similarly, where the appellate court is
convinced
that the conclusion reached by the trial court is clearly
wrong, it will reverse it.”
56
(Footnotes omitted.)
I
conclude that the findings of the Supreme Court of Appeal in
relation to Mr Topper are not incorrect. This means that the

applicants do not pass the threshold requirement and therefore the
issue whether the factual error is reasonable does not even
begin
to arise.
The
Labat issue
On
18 April 2002, the three shortlisted bidders were required to make
oral presentations. Mr Van Rooyen, who was the group chief

executive officer of a black economic empowerment group of
companies known as Labat, turned up at the meeting and participated

in the presentation of the Kumo tender. It appears common cause
that Labat did not appear on the Kumo proposal as a company
forming
part of the consortium as prescribed by the RFP.
57
At the presentation, Mr Van Rooyen explained
that Labat was the prime contractor and that the other companies
listed in the
Kumo proposal were subcontractors. On these facts,
the High Court found that Kumo had no fixed consortium agreements
and that
therefore there had not been proper compliance with the
requirements of the RFP by Kumo.
The
question that arose was whether the late entry of Labat to the
process had any effect on the evaluation and award of the
tender
and if so, did that indicate a dishonest manipulation of the
process by Post Office officials? That was indeed the submission
of
the applicants.
They urged upon the Supreme Court of Appeal,
to find, as the High Court did, that the Kumo tender was fatally
flawed because
Labat did not feature in the original Kumo tender.
They added that, even so, the Post Office dishonestly evaluated the
Kumo
tender taking into account Labat’s black economic
empowerment credentials and that in effect the tender was awarded
to
Labat and not to Kumo.
The Supreme Court
of Appeal reviewed in considerable detail the relevant minutes of
the Evaluation Committee and of the Tender
Board and concluded that
although the belated appearance of Labat caused confusion amongst
members of the Evaluation Committee
and of the Tender Board, it had
no effect on the evaluation of the tender. The Court found that the
Kumo tender was evaluated
as it was presented with no regard to the
late entrance of Labat. It also found that, in any event, the
evidence does not show
that the officials concerned dishonestly
awarded the tender on the strength of the submissions presented by
Labat. The Court
concluded that the tender was indeed awarded to
Kumo; that the Labat issue was a “red herring” and that
“the
appearance of Labat had no effect on the evaluation and
award of the tenders.”
58
The
applicants take issue with these findings. They prefer and support
the finding of the High Court that:
“
It
must have been obvious to some of the senior members that Kumo had
to be disqualified. Labat’s late appearance was patently

obvious. The fact that that did not happen can only lead to a
conclusion that a person or persons, other than Topper, with

influence, did not want Kumo to leave the scene.”
59
I
tend to agree with the applicants that the Labat issue was more
than a “red herring.” It is so that Labat was
not
originally listed in Kumo’s RFP as a member of the consortium
and that its subsequent participation in the presentation
caused
considerable disquiet not only on the part of the Cornastone
consortium, but also of the Evaluation Committee and the
Tender
Board. That, however, is not the end of the enquiry in a delictual
claim for damages, such as the present one. Properly
so, the
Supreme Court of Appeal
was preoccupied
with the question whether the belated entry of
Labat constituted a dishonest or fraudulent manipulation of the
evaluation and
awarding of the tender and whether but for the
manipulation, Cornastone would have been awarded the tender.
To
this question, the applicants submit that the Supreme Court of
Appeal should have found that the Evaluation Committee and
Tender
Board dishonestly or fraudulently or corruptly accepted Labat as
part of the Kumo consortium and awarded it the tender
for that
reason. On the other hand the Supreme Court of Appeal carefully
examined the Evaluation Committee’s scoring
and concluded
that the presence of Labat made no difference whatsoever to the
ultimate scoring which was presented to the ultimate
decision
maker, the Tender Board. That explains why the Supreme Court of
Appeal concluded that the Kumo tender was evaluated
precisely as it
had been presented, with no consideration being given to Labat,
whether in the allocation of black economic
empowerment points or
not. The Court furthermore made the point that despite the entry of
Labat, Cornastone retained a higher
black economic empowerment
rating than Kumo.
Lastly,
it bears repetition that despite the late entry of Labat and its
supposed impact on the tender evaluation, the Evaluation
Committee
recommended as its first preference that the Tender Board award the
contract to Cornastone and Kumo jointly. That
recommendation is
hardly consistent with a corrupt intent to favour Kumo at the
expense of Cornastone.
I
can find no misdirection, on this score, that justifies an
inference that the Supreme Court of Appeal got the facts wrong.

They rather took a different view from the High Court. And that is
that the late entry of Labat was not fatal to the validity
of the
process because it did not corruptly taint the evaluation or
awarding of the tender. Its preferred approach on the Labat
issue,
in my judgment, is not wrong and therefore cannot possibly induce a
reasonable apprehension of bias.
Does
the evidence establish dishonesty and fraud in the tender process?
The
applicants contend that, despite the finding of the Supreme Court
of Appeal that there was no fraud in the tender process,
the
evidence established dishonesty and fraud. For this they advance
only one ground. They say that the most compelling evidence
in the
record that there was “some fraud in the tender process, is
the exchange between [the Post Office’s] senior
counsel . . .
and Hartzenberg J during the trial in the High Court.” The
statement made by the senior counsel is: “I
am not saying
that there was no fraud in this whole process.” To this the
learned judge replied: “I was just thinking
about the same
thing. Why did you cancel the Kumo contract?” The applicants
contend that this exchange is a concession
that there was fraud in
the whole process.
The
submission has no merit whatsoever. Whatever concession, if indeed
counsel made one, can hardly serve as a proxy for admissible

evidence of causally related fraud. That is what the applicants
were obliged to adduce in order to succeed in their claim.
Did
the technical evaluation take place in the presence of a
representative of the auditing firm, KPMG?
The
Supreme Court of Appeal made the finding that the technical
evaluation took place in the presence of a representative of
the
auditing firm, KPMG. This is to be contrasted with the finding of
the High Court that the tender process from the beginning
to the
end was done by Post Office employees and that KPMG was only
involved in the opening of the tenders. It is so that,
on the
record, the technical evaluation was certainly not completed in the
presence of KPMG. Their involvement ended on 19
March 2002, just a
day after the closing date for the lodging of tender submissions.
The Supreme Court of Appeal’s finding
thus may be an error on
the facts. On the back of this, the applicants urge us to find that
the Supreme Court of Appeal made
this error for a sinister reason.
This they say was in order “to lend credibility to the
technical evaluation of the
tender process by incorrectly recording
that KPMG were part of the technical tender evaluation process.”
This
startling accusation is a relic of the applicants’ original
accusation of deliberate bias. Whether the auditors sat
in
throughout the technical tender evaluation or were there only when
the tenders were opened is a difference of no moment
to the central
issues. It explains nothing about whether the evaluation was
tainted by dishonesty that stood in the way of
Cornastone being
granted the tender. The factual mistake is indeed minute and not
material. It cannot serve as any platform
for inferring partiality.
Was
the applicants’ biometric system incomplete?
The
applicants are unhappy that the Supreme Court of Appeal implied
that their system was incomplete in the sense that it “had

yet to be fully developed and tested” and that “they
had no direct experience upon which to rely.”
60
The Court added that the technical evaluation
team had “good and rational grounds” to have had
greater confidence
in the Kumo system, as reflected in the
differentials in their scores. The applicants prefer and support
the finding of the
High Court that “the Evaluation Committee
did not give any indication that the system of either Kumo or
Cornastone did
not comply with the requirements.”
61
The
Kumo tender was lodged with a certificate that its system is EMV
level 2 compliant.
62
The Cornastone tender document was not
accompanied by similar certification. However, it candidly
explained that Cornastone
could not achieve the prescribed
certification within the timeframes of the tender response but
could do so within 3 months
and that would not affect the rollout
of the project.
63
Even so, the trial court spent much time on the
question whether the Cornastone system was EMV level 2 compliant.
The Post Office
contended that it was not and that for that reason
alone their tender should have been disqualified. The High Court
dismissed
this contention and found that it was an impossible
requirement for any bidder to comply with, given the narrow
timeframes
for the tender responses.
The
three technical evaluators were alive to the fact that Cornastone
was not appropriately EMV level 2 compliant at the time.
Their
score sheet remarks reveal so. Plainly there is no merit in the
suggestion that the Supreme Court of Appeal was wrong
in finding
that the Cornastone system had yet to be fully developed and
tested. The applicants’ own tender document revealed
that
much, and the High Court too accepted, that Cornastone could not
have procured the certification in time for the submission
of the
tender document.
Again
it must be said that even if their system “can be expressed
as 100%”, as they demand that the Supreme Court
of Appeal
should have found, the core question remains. And that is whether
the technical evaluators dishonestly scored Kumo’s
system
more favourably than they should have and that, but for that fraud,
Cornastone would have been awarded the tender.
Their
present contention that the finding on their EMV level 2 compliance
is wrong or unreasonable on the record cannot be sustained.
They
have not shown that in making this finding the Court may reasonably
be perceived as less than impartial.
Are
the findings of the Supreme Court of Appeal on tender requirements
correct?
The
complaint raised under this rubric is anything but clear. It
vacillates from a complaint that the tender was awarded to
a
tenderer who had not scored the highest points to a claim that
there was no proper compliance with the requirements of the
RFP by
Kumo. No clear-cut factual errors are identified. It may indeed be
so that there were irregularities that may or may
not have
justified any of the bidders being disqualified. That however is of
no relevance to the present enquiry. The applicants
are called upon
to show a disregard of the evidence that is symptomatic of bias.
That has not been shown.
Was
the report of Ernst & Young admissible as evidence?
The
applicants are aggrieved that the Court ruled that the findings
contained in the Ernst & Young report were inadmissible
as
evidence. The High Court relied heavily on the report in concluding
that “it is very clear that the whole tender process
was
flawed.”
64
What is very clear is that but for the report
the applicants had no prospect of showing fraud and dishonesty, if
any, within
the tender process. The High Court explains why. It
finds that the applicants had harboured suspicions and fear that Mr
Topper
had acted improperly but that they had no evidence to prove
it until they complained to the Ombudsman and later received the
report.
65
Relying
on the findings in the report, the applicants sought to persuade
the Supreme Court of Appeal to find that Mr Topper
dishonestly
manipulated the process in order to favour Kumo. The Court declined
the invitation. It ruled that the findings
of the auditors were
inadmissible hearsay and that, in any event, their report makes
plain that its conclusions were “tentative”,
“based
on an incomplete examination of all the evidence” and
“subject to various disclaimers.”
66
The Court thought that in those circumstances
the report could not be accorded any weight and also that it “is
for a court,
not auditors, to decide this case and to do so upon
evidence that is properly before it.”
The
applicants contend that there is no evidence to support the ruling
of the Supreme Court of Appeal that the report may not
be admitted
to evidence particularly because the Post Office never seriously
contested the correctness of the findings.
The
difficulty the applicants have to contend with is that the
difference in a ruling, between a trial court and an appellate

court, on whether a particular piece of evidence is admissible is
not a difference on the evidence but a matter of law.
67
When the Supreme Court of Appeal decides to
exclude or place little weight on the findings in the report, it is
in effect making
a decision on the law. The mere fact that the
trial court made a different ruling on its admissibility cannot
induce a reasonable
perception of bias. A difference on the law can
hardly, without more, be symptomatic of bias.
Admissions
in paragraphs 20.3 and 20.7 of the plea
Our
directions
68
invited submissions on the significance of the
admissions made in paragraphs 20.3 and 20.7 of the plea.
69
Both parties confirmed that the admissions were
part of the pleadings that served before the High Court and the
Supreme Court
of Appeal. The applicants went on to submit that the
admissions obliged the Supreme Court of Appeal to accept gross
misconduct,
fraud and corruption in the tender process as common
cause facts. They added that the Supreme Court of Appeal was wrong
to
the extent that it held that there was no fraud or dishonesty in
the tender process.
On
the other hand, the Post Office argued that the admissions were
carefully pleaded and that whilst there were admissions made
about
the irregular conduct of Mr Topper there was no admission by it
that any of its officials intended to act fraudulently,
corruptly
or dishonestly or in breach of any duty of care owed to Cornastone
or that this led to any loss on the part of Cornastone.
The
respondent explains that the applicants’ particulars of claim
were drafted before the decisions in
Steenkamp
70
and
Minister of
Finance v Gore NO
71
were delivered and paid little attention to what
was said in
Olitzki Property Holdings
v State Tender Board and Another
.
72
The nub of their submission is that for the
applicants to succeed, even in the face of the admissions in the
pleadings, they
have to establish causally relevant fraudulent or
dishonest intent as required in those decisions. It would not
suffice for
them to rely on fraud and corrupt manipulation “in
the air”. They must establish deliberate dishonesty, fraud or
corruption that must have caused the applicants’ loss.
The
admissions made are indeed far-reaching. At the very least they
suggest that Mr Topper had made himself guilty of gross
misconduct
and corruption, that there were unacceptable relationships between
him and members of Kumo which gave rise to bias
on his part, and
that he inaccurately described to the Tender Board the structure of
Kumo.
Also
true is that the pleadings need to be read as a whole. On close
scrutiny it is clear that the Post Office denied that it
owed the
applicants any duty of care, or that its employees acted in bad
faith, or went about their employment in relation
to the tender
process with the intent to act fraudulently, corruptly or
dishonestly towards the applicants. In brief, the Post
Office
denied that the conduct of its employees amounted to a breach of a
duty of care, if any, owed to Cornastone.
To
the extent that the judgment of the Supreme Court of Appeal
suggests that no finger could be pointed at Mr Topper, it may
be
less than accurate in the light of these admissions. An error of
that magnitude would be of no moment. Without more, it
cannot be
suggested that this error amounts to more than a mere misdirection
and that it is inexplicable except on the basis
of bias. There are
no admissions that the fraud on the part of Mr Topper is causally
related to the loss of profits the applicants
claim to have
suffered. Even more importantly, this could hardly be a valid
ground for the complaint that these findings of
the Supreme Court
of Appeal are so unreasonable as to induce an apprehension of bias.
Conclusion
on prospects of success
Having
examined the big ticket items the applicants have put up as
examples of findings that diverge from the record, it is

overwhelmingly apparent that the applicants have failed to show
that the judgment of the Supreme Court of Appeal contains any

material misdirections which may reasonably induce a reasonable
apprehension of bias. It must also be said that nothing in
the
findings of the Supreme Court of Appeal could ever justify the
baseless and scurrilous accusations of a deliberate distortion
of
facts and actual bias on the part of the panel of five judges of an
appellate court. I therefore conclude that the bias
claim advanced
by the applicants bears no prospects of success whatsoever.
What
remains to be considered is an appropriate order as to costs.
Costs
The
applicants submitted
that if they were not to be granted
direct access
they should not be burdened with
costs because they had sought to vindicate a constitutional right
against a public entity.
The Post Office contended that this
Court’s approach, which aims to avoid a chilling effect on
litigants who seek to
vindicate constitutional rights, cannot be
allowed to develop into an inflexible rule that encourages
litigants to challenge
any judgment no matter how spurious the
grounds or how poor the prospects of success. It submitted that the
application is
vexatious, and that it should be dismissed with
costs on an attorney and client scale, these costs to be paid by
the applicants
and their attorney jointly and severally.
An
award of costs is a matter which lies in the discretion of a court.
The discretion is exercised judicially and with regard
to all
circumstances relevant to the determination of costs. The standard
developed by this Court, to be used in the enquiry,
is whether it
is just and equitable to make a particular costs order.
73
We have also said that where an unsuccessful
litigant had sued a state organ with a view to vindicate a
protection afforded
by the Constitution, the litigant should not
ordinarily be ordered to pay costs.
74
That however is not an inflexible rule.
A
court may depart from this general rule if it is just and equitable
to do so. This may be the case where the unsuccessful
litigant is
shown to have acted with improper motive, or has abused court
process; has conducted the case in a vexatious manner;
75
has not properly adhered to the rules of court;
has made sustained and unwarranted attacks on other litigants
76
or witnesses or judicial officers
77
concerned or has not pursued the claim in good
faith. This limited catalogue is not intended to be exhaustive in
as much as
what may be an appropriate costs order, even in
constitutional litigation, and may be conditioned by the
circumstances of the
case.
I
have described in great detail the conduct of the applicants in
pursuing this case. It does not bear repetition. It is conduct
that
attracts a punitive costs order. The Post Office invited us to make
part of that order payable from the pockets of the
applicants’
counsel and attorney (
de bonis propriis
). In its oral
submissions the Post Office added that the applicants’
attorney and counsel were more than hired assassins.
They
associated themselves with the undignified, wanton and baseless
attacks their clients mounted against the integrity of
the judges
concerned. The Post Office drew attention to written argument
authored by counsel. This often repeated word for
word the
unwarranted sworn accusations. In that way counsel’s argument
made common cause with their clients’ crusade
to upset the
decision of the Supreme Court of Appeal which in turn deprived
their clients of the attractive award of R60 million.
Tempting
as it is, this is an invitation we ought to decline. The invitation
is tempting because the conduct of the applicants’
legal
representatives is not without blemish. As we have seen, it is
indeed so that as they settled their clients’ affidavits
and,
in written argument authored by counsel, they rehashed word for
word the unwarranted accusations of their clients. When
their
clients changed tack, so did they. They too now accept that their
clients’ charges were baseless and that they
owe an
unqualified apology to the judges concerned. The question that
remains unanswered is whether these legal representatives
had
breached the ethical duty they owe to a court as its officers.
An
officer of the court may not without more convey to a court
allegations or claims by a client when there is reason to believe

that the allegations are untruthful or without a factual basis.
78
This duty is heightened in circumstances where
imputations of dishonesty and bias are directed at a judicial
officer who ordinarily
enjoys a presumption of impartiality. It
behoves the legal representative concerned to examine carefully the
complaints of
judicial bias and dishonesty and the facts, if any,
upon which the accusations rest. Here it is doubtful whether these
legal
representatives did so. That, in my view, is a matter which
calls for an enquiry by their respective professional bodies to

which the applicants’ attorneys and advocates belong. An
appropriate order drawing the attention of these professional

bodies to this judgment will be made.
I
nonetheless decline the invitation to make the costs order
de
bonis propriis
against these legal
representatives. An order of this nature would be justified where
the conduct of a legal representative,
that is not attributable to
a litigant, calls for the court to express its displeasure.
79
This would be the case, for instance, where
there is nothing to suggest that the litigant has actively
associated herself or
himself with the conduct of the legal
representative. This cannot be said of the applicants in this case.
Both of them deposed
to these utterly unfounded accusations of
ulterior motive and judicial dishonesty. They actively pursued
complaints before
the JSC rehashing substantively the same
accusations that they made in their affidavits before this Court.
When the matter
was heard and counsel explained a change of heart
of his clients, at least one of them, Mr De Lacy, we were informed,
sat in
court. We have no reason to infer that the clients did not
actively associate themselves with the allegations and it is also
fair to assume that the legal representatives repeated these acting
on instructions from their clients. There is thus no reason
to
indemnify the applicants against an adverse and punitive costs
order.
The
conduct of the applicants’ legal representatives may have to
be dealt with by their respective professional bodies.
They should
be requested to consider whether their conduct amounts to a breach
of any ethical rule. To this extent, the Registrar
will be directed
to furnish a copy of this judgment to the Society of Advocates,
Johannesburg, and to the Law Society of the
Northern Provinces.
In
the circumstances it is just and equitable that the applicants bear
the full brunt of a costs order on an attorney and own
client
scale.
Order
In
the event, the following order is made:
The
application for direct access is dismissed.
Mr
Brian Patrick De Lacy, the first applicant, and Mr Barry Jack
Beadon, the second applicant, are ordered to pay the costs
of the
application on an attorney and own client scale, which costs
include the employment of two counsel.
The
Registrar of this Court is directed to furnish a copy of this
judgment to the Law Society of the Northern Provinces and
the
Society of Advocates, Johannesburg.
Ngcobo CJ,
Cameron J, Froneman J, Jafta J, Khampepe J,
Mogoeng J, Mthiyane AJ, Nkabinde J,

Van der Westhuizen J and Yacoob J concur in the
judgment of Moseneke DCJ.
For the Applicants: Adv M Nowitz instructed by Nowitz Attorneys.
For
the Respondent: Adv NGD Maritz SC and Adv HF Jacobs instructed by
Mahlangu Inc.
1
South
African Post Office v De Lacy and Another
2009 (5) SA 255
(SCA)
(SCA judgment).
2
Section
9(1) of the Constitution provides: “Everyone is equal before
the law and has the right to equal protection and benefit
of the
law.”
3
Section
34 of the Constitution provides: “Everyone has 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.”
4
Section
165(2) of the Constitution provides: “
The courts are
independent and subject only to the Constitution and the law, which
they must apply impartially and without fear,
favour or prejudice.”
5
Brian
Patrick De Lacy and Barry Jack Beadon v South African Post Office
,
Case No. 11477/2003, Transvaal Provincial Division (now North
Gauteng High Court, Pretoria), 11 December 2007, unreported (High

Court judgment), at
para 20.
6
Paragraph
6.3.1.2 of the RFP provides that: “[I]f the proposal is
submitted by a consortium, each company forming part of
the
consortium must complete Annexure ‘G’ individually and
submit it as part of the proposal.” Annexure G required
that
each company involved in the tender submit
fixed consortium
agreements, financial statements or tax certificates.
7
High
Court judgment above n 5 at para 22.
8
Id
at para 25.
9
Id
at para 26.
10
Id.
11
2007
(1) SA 111
(SCA).
12
[2006]
ZACC 26
;
2007 (3) SA 121
(CC);
2007 (3) BCLR 300
(CC). The Supreme
Court of Appeal’s judgment in that case is reported as
Steenkamp NO v Provincial Tender Board, Eastern Cape
2006
(3) SA 151
(SCA).
13
SCA
judgment above n 1 at para 14.
14
Id
at para 32.
15
Id
at para 33.
16
Id
at paras 39-41.
17
Id
at para 39.
18
Id.
19
Id
at para 40.
20
See
the
Broad-Based Black Economic Empowerment Act 53 of 2003
.
21
SCA
judgment above n 1 at para 45.
22
Id
at para 40.
23
Id.
24
Id
at para 117.
25
Established
in terms of section 178 of the Constitution and the
Judicial Service
Commission Act 9 of 1994
, as amended by the
Judicial Service
Commission Amendment Act 20 of 2008
.
26
Section
177(1) of the Constitution contemplates the removal from office of a
judge if the Judicial Service Commission finds that
she or he is
grossly incompetent or is guilty of gross misconduct.
27
Rule
18(1)-(3) of the Rules of this Court provides:
“
(1)
An application for direct access as contemplated in section
167(6)(a)
of
the Constitution shall be brought on notice of motion, which shall
be supported by an affidavit, which shall set forth the
facts upon
which the applicant relies for relief.
(2)
An application in terms of subrule
(1) shall be lodged with the Registrar and served on all parties
with a direct or substantial
interest in the relief claimed and
shall set out—
(a) the grounds on
which it is contended that it is in the interests of justice that an
order for direct access be granted;
(b) the nature of
the relief sought and the grounds upon which such relief is based;
(c) whether the
matter can be dealt with by the Court without the hearing of oral
evidence and, if it cannot;
(d) how such
evidence should be adduced and conflicts of fact resolved.
(3) Any person or
party wishing to oppose the application shall, within 10 days after
the lodging of such application, notify
the applicant and the
Registrar in writing of his or her intention to oppose.”
28
Rule
19(1)-(3) of the Rules of this Court provides:
“
(1)
The procedure set out in this rule shall be followed in an
application for leave to appeal to the Court where a decision on
a
constitutional matter, other than an order of constitutional
invalidity under section
172(2)(a)
of
the Constitution, has been given by any court including the Supreme
Court of Appeal, and irrespective of whether the President
has
refused leave or special leave to appeal.
(2) A litigant who
is aggrieved by the decision of a court and who wishes to appeal
against it directly to the Court on a constitutional
matter shall,
within 15 days of the order against which the appeal is sought to be
brought and after giving notice to the other
party or parties
concerned, lodge with the Registrar an application for leave to
appeal: Provided that where the President has
refused leave to
appeal the period prescribed in this rule shall run from the date of
the order refusing leave.
(3)
An application referred to in subrule
(2) shall be signed by the applicant or his or her legal
representative and shall
contain—
(a) the decision
against which the appeal is brought and the grounds upon which such
decision is disputed;
(b) a statement
setting out clearly and succinctly the constitutional matter raised
in the decision; and any other issues including
issues that are
alleged to be connected with a decision on the constitutional
matter;
(c) such
supplementary information or argument as the applicant considers
necessary to bring to the attention of the Court; and
(d) a statement
indicating whether the applicant has applied or intends to apply for
leave or special leave to appeal to any other
court, and if so—
(i) which court;
(ii) whether such
application is conditional upon the application to the Court being
refused; and
(iii) the outcome
of such application, if known at the time of the application to the
Court.”
29
See
Zondi v MEC, Traditional and Local Government Affairs, and Others
[2005] ZACC 18
;
2006 (3) SA 1
(CC);
(2006) 3 BCLR 423
(CC) at para
28, citing
West Rand Estates Ltd v New Zealand Insurance Co Ltd
1926 AD 173
at 178 per Innes CJ and
Firestone South Africa
(Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A) at 306F-G.
30
Rule
18(4) of the Rules of this Court provides:
“
After such notice of
intention to oppose has been received by the Registrar or where the
time for the lodging of such notice has
expired, the matter shall be
disposed of in accordance with directions given by the Chief
Justice, which may include—
(a) a direction calling upon the
respondents to make written submissions to the Court within a
specified time as to whether or
not direct access should be granted;
or
(b)
a direction indicating that no written submissions or affidavits
need be filed.”
31
Section
177(1) of the Constitution provides:
“
A judge may be removed from
office only if—
(a) the Judicial Service Commission finds that the
judge suffers from an incapacity, is grossly incompetent or is
guilty of gross
misconduct; and
(b) the National Assembly calls for that judge to be
removed, by a resolution adopted with a supporting vote of at least
two thirds
of its members.”
32
On
3 May 2010 the Chief Justice issued the following directions:
“
The respondent is directed in
terms of Rule 18 to file a written response by Friday 14 May 2010
dealing solely with the question
whether the application for direct
access should be granted.”
On
17 May 2010 the Chief Justice issued the following directions:
“
1. The application will be
dealt with without hearing oral argument.
2. The parties are directed to file brief written
submissions by Friday 28 May 2010 as to whether—
(i) the application for direct access should be
granted; and, if not
(ii) whether there are grounds for an order as to costs
on a higher scale.”
On 23 August 2010 the Chief Justice issued the
following directions:
“
1.
Whether
the pleadings that appear in volumes 1 to 5 of the appeal record are
the pleadings upon which the matter was adjudicated
in the High
Court and the Supreme Court of Appeal;
2. If not, what the contents of the pleadings upon
which the matter was adjudicated are and where these pleadings
appear in the
record;
3. If the pleadings are those that appear in volumes 1
to 5 of the appeal record, whether the admissions of—
a. paragraphs 14.2.3.2, 14.2.4, 14.2.5, 14.2.6 (p 13,
vol 1 of the appeal record) and 16.3.1 to 16.3.9 (pp 15-18, vol 1)
of the
Plaintiff’s Particulars of Claim, made in paragraph
20.3 (vol 5, p 407) of the Plea, and
b. paragraphs 16.5.1, 16.5.3, 16.5.5 and 16.5.6 (p 19,
vol 1) of the Plaintiff’s Particulars of Claim, made in
paragraph
20.7 (vol 5, p 408) of the Plea—
were at any stage withdrawn during the trial and, if
they were, where this appears in the appeal record.
4. If the admissions in question were not withdrawn,
whether on the pleadings, it was common cause between the applicants
and
the Post Office that the tender process that led to the award to
Kumo, was materially prejudiced and compromised as a result of
bias,
gross misconduct and corruption, including the underhanded and
dishonest conduct of Topper.”
33
S
v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) (
Basson I
) at paras 21-2. See also
Bernert v Absa
Bank Ltd
[2010] ZACC 28
;
2011 (3) SA 92
(CC);
2011 (4) BCLR 329
(CC).
34
Section
165(1) of the Constitution.
35
Section
167(6) provides:
“
National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interests of justice and
with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional
Court; or
(b) to appeal directly to the Constitutional Court from
any other court.”
36
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC
3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 4.
See
also
AParty and Another v Minister for
Home Affairs and Others; Moloko and Others v Minister of Home
Affairs and Another
[2009] ZACC 4
;
2009 (3) SA 649
(CC);
2009 (6) BCLR 611
(CC) at para 30, citing
among others:
Dormehl v Minister of Justice and Others
[2000] ZACC 4
;
2000 (2) SA 987
(CC);
2000 (5) BCLR 471
(CC) at
para 5;
Christian Education South Africa v Minister of Education
[1998] ZACC 16
;
1999 (2) SA 83
(CC);
1998 (12) BCLR 1449
(CC) at
paras 3-4; and
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA
642
(CC);
1995 (4) BCLR 401
(CC) at para 11.
37
[2011]
ZACC 6
, Case No CCT 48/10, 17 March 2011, as yet unreported, at
paras 24-5.
38
The
first attempt, an application for leave to appeal to this Court, was
lodged on 3 June 2009 (see [26] above). The second attempt,
a
further application for leave to appeal, was lodged on 24 March 2010
(see [31] above).
39
For
examples of cases where this Court has dismissed applications
because they were based purely on a dispute of fact with a lower

court, see
S v Marais
[2010] ZACC 16
;
2011 (1) SA 502
(CC);
2010 (12) BCLR 1223
(CC) and
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC).
40
See
above n 26.
41
Rule
32(1) of the Rules of this Court provides that the Court or the
Chief Justice may “of their own accord or on application
and
on sufficient cause shown, extend or reduce any time period
prescribed in these rules and may condone non-compliance with
these
rules”. See also:
Van Wyk v
Unitas Hospital and Another
[2007]
ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) and
Laerskool
Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd
[2009] ZACC 12
;
2009 (10) BCLR 1040
(CC) at para
15.
42
Bernert
above n 33 at para 71.
43
S
v Mamabolo (E TV and Others Intervening)
[2001]
ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 77.
44
Bernert
above n 33.
45
Id
at para 28. See also
President of the
Republic of South Africa and Others v South African Rugby Football
Union
and Others
[1999]
ZACC 9
;
1999 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) (
SARFU
II
) at para 35.
46
Bernert
above n 33 at para 35.
47
Id
at para 34.
48
S
v Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR
1192
(CC) (
Basson II
) at para 70.
49
Bernert
above n 33 at para 102.
50
Id
at para 103.
51
Bernert
above n 33 at para 103.
52
High
Court judgment above n 5 at para 26.
53
Id
at para 56.
54
SCA
judgment above n 1 at
para 30.
55
Id
at para 81.
56
Bernert
above n 33 at para 106.
57
See
above n 6.
58
SCA
judgment above n 1 at para 107.
59
High
Court judgment above n 5 at para 26.
60
SCA
judgment above n 1 at para 79.
61
High
Court judgment above n 5 at para 13.
62
EMV
is an acronym for three major credit card organisations, Europay,
Mastercard and Visacard, that have set up an institute to
evaluate
electronic payment systems for compliance with security standards.
63
SCA
judgment above n 1 at para 85.
64
High
Court judgment above n 5 at para 24.
65
Id
at para 51.
66
SCA
judgment above n 1 at
para 30.
67
Basson
I
above n 33 at paras 54-60.
68
Dated
23 August 2010. Above n 32.
69
Paragraph
20.3 of the respondent’s plea read as follows:
“
The [respondent] upon
becoming aware of the allegations made by the [applicants] in
paragraphs 14.2.3.2, 14.2.4, 14.2.5, 14.2.6,
and 16.3.1 to 16.3.9
(which it admits) withdrew Kumo’s conditional appointment and
thereafter cancelled the whole of the
tender process as it was
entitled to do having regard to its general legislative duty to act
fairly, equitably, transparently
and lawfully.”
The
relevant parts of the paragraphs in the applicants’
particulars of claim to which the respondent admitted in paragraph

20.3 read as follows:
Paragraph
14.2.3.2: “. . . one or more of the parties evaluating the
Tender bids . . . was guilty of gross misconduct
and/or
corruption”;
Paragraph
14.2.4: “. . . there were anomalies to the Kumo Tender bid
which should have disqualified same”;
Paragraph
14.2.5: “. . . the requirement of anonymity of bidding
companies was not adhered to”;
Paragraph
14.2.6: “. . . there were unacceptable relationships between
certain of the [respondent’s] employees (specifically
Topper)
and members of Kumo, which gave rise to bias, gross misconduct and
corruption in the context of the Tender process,
which was
materially prejudiced and compromised as a result thereof”;
and
Paragraph
16.3.1 to 16.3.9: “. . . other bidders and in particular,
Kumo, were afforded an unfair or improper advantage”.
Paragraph
20.7 of the respondent’s plea stated as follows:
“
The
[respondent] admits the allegations made in sub-paragraphs 16.5.1,
16.5.3, 16.5.5 and 16.5.6. In this context [the applicants]
repeats
the content of paragraph 20.5 and 20.6 above.”
The
relevant parts of the paragraphs in the applicants’
particulars of claim to which the respondent admitted in paragraph

20.7 read as follows:
Paragraph
16.5.1: “. . . the Tender was not conducted in an open,
honest and transparent manner and in accordance with
the terms and
conditions of the Tender itself . . . irregularities occurred in
the Tender process, especially insofar as they
relate to Topper and
Kumo”;
Paragraph
16.5.3: “Topper and Inman had a relationship preceding the
Tender, both on a personal and business level, which
resulted in
Topper not being in a position to adjudicate Cornastone’s
Tender fairly and impartially and the non disclosure
of that fact
was material and constituted gross misconduct”;
Paragraph
16.5.5: “the inclusion of Labat in Kumo amounted to an
irregularity in the Tender process, as its inclusion
occurred after
the Tender had closed”; and
Paragraph
16.5.6: “Topper’s prior knowledge of Kumo’s
tender bid ensured that the evaluation process would
be ineffective
and in this regard, his conduct was underhanded and amounted to
dishonesty”.
Paragraph
20.5 and paragraph 20.6, of which the respondent repeated the
contents in relation to the admissions in paragraph 27,
no doubt in
order to qualify the admissions made, read as follows:
Paragraph
20.5: “The [respondent] had no knowledge of all of Mr
Topper’s activities referred to therein, but took
note of the
report of Ernst & Young. However, on 2
nd
September 2002 first [applicant] wrote to Mr
Topper, a member of the [respondent’s] Tender Evaluation
Committee at the
time, accusing him of serious acts of misconduct
and unethical behaviour over a period of 2 years”; and
Paragraph 20.6: “First [applicant] neglected
and/or failed to bring these allegations to the attention of the
[respondent]
which were relevant to the tender process. Accordingly
the [respondent] denies that [the applicants] can now rely on any
cause
of action based on the [respondent’s] alleged breach of
duty of care and bad faith.”
70
Above
n 12.
71
Above
n 11.
72
2001
(3) SA 1247
(SC
A
).
73
See
for example:
Biowatch Trust v Registrar,
Genetic Resources, and Others
[2009] ZACC
14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at paras 21-3 and
Affordable Medicines Trust and Others v
Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005
(6) BCLR 529
(CC) at paras 138-9. Also see
City
of Cape Town and Another v Robertson
and
Another
[2004] ZACC 21
;
2005 (2) SA 323
(CC)
at para 79;
Masetlha v President of Republic
of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) at para 103;
Bothma
v Els and Others
[2009] ZACC 27
;
2010 (2) SA
622
(CC);
2010 (1) BCLR 1
(CC) at para 94;
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd (formerly Tropical
Paradise 427 (Pty) Ltd) and others (Bengwenyama-ye-Maswazi
Royal
Council intervening)
2010
(3) All SA 577
(SCA) at para 31; and
De
Kock and Others v Van Rooyen
2005 (1) SA 1
(SCA) at para 30.
74
Biowatch
above n 73 at para 21 and
Affordable Medicines
above n 73 at para 138. See also
Du Toit v
Minister of Transport
[2005] ZACC 9
;
2006
(1) SA 297
(CC);
2005
(11) BCLR 1053
(CC) at para 55;
Volks NO
v Robinson and Others
[2005] ZACC 2
;
2005
(5) BCLR 446
(CC) at para 69; and
Jooste
v Score Supermarket Trading (Pty) Ltd (Minister of Labour
intervening)
[1998] ZACC 18
;
1999 (2) SA 1
(CC);
1999 (2) BCLR 139
(CC) at para 23
.
75
Laerskool
Middelburg en ‘n Ander v Departementshoof, Mpumalanga
Departement van Onderwys en Andere
2003
(4) SA 160 (T) at
178I-179C and
Ex parte
Jordaan: In re Grunow Estates (Edms) Bpk v Jordaan
1993
(3) SA 448
(O) at 453E-J.
76
W
v S
and Others
1988
(1) SA 475
(NPD) at 497G-H and
Polverini
v General Accident Insurance Co South Africa Ltd
1998
(3) SA 546
(WLD) at 554I-555A.
77
Protea
Assurance Co Ltd v Januszkiewicz
1989
(4) SA 292
(WLD) at 298D-299A.
78
It
should also be noted that in our law an advocate may be held liable
for defamation for statements made from the bar. Van Dijkhorst
and
Church (14(2) LAWSA
(2 ed) at 135)
summarises the position as follows:
“
In the conduct of a case the
advocate may not use abuse, slander and vituperation. He or she, is
however, protected when making
a defamatory statement in the
interest of the client, pertinent to the matter in issue, even
though it may be false, provided
he or she has some reasonable cause
for such conduct.
There
is no protection when the advocate goes out of his or her way to
defame an individual and to allege or insinuate calumnious
charges
not justified by the occasion.
”
(Footnotes omitted.) (Emphasis added.)
79
See
South African Liquor Traders’ Association and
Others v Chairperson, Gauteng Liquor Board, and Others
[2006]
ZACC 7
;
2009 (1) SA 565
(CC);
2006 (8) BCLR 901
(CC)
at para 54 and
Baphalane Ba Ramokoka
Community v Mphela Family and Others, In re: Mphela Family and
Others v Haakdoornbult Boerdery CC and Others
[2011]
ZACC 15
, CCT 75/10, 21 April 2011, as yet unreported, at paras 42
and 44. The order is made as a consequence of a material departure

from the responsibility of office by a legal representative. The aim
of the order is to indemnify a party from an account for costs
by
ordering that representative to pay the costs himself.
Courts
will not make such an order lightly. The mere incorrect rendering of
legal services will generally not justify an order
de
bonis propriis
; it is accepted that it will
only be awarded in instances of improper conduct. (See Van
Loggerenberg and Farlam
Erasmus Superior
Court Practice
(Juta, Cape Town 2010) at
E12-3 and E12-27 to 29.) South African courts are not unique in
holding legal practitioners personally
liable for costs. Similar
orders are made in Australia, Canada, New Zealand and England and
Wales.