IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not reportable
Case no:3557/2025
In the matter between:
MOPANI CIVILS (PTY) LTD APPLICANT
and
LEKWA TEEMANE LOCAL MUNICIPALITY FIRST RESPONDENT
RM MASHABA PROJECTS (PTY) LTD SECOND RESPONDENT
Coram: Wessels AJ
Heard: 4 June 2026
Delivered: This judgment was handed down electronically, circulated to the
parties’ representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 16h00 on 4 September 2026.
Summary: Civil Procedure – Review – Rule 53(1)(b) – application to compel
production of record – mootness deferred to review court – Rule 30A notice not
2
required for self -contained rule – original record required, not a copy –
application granted, costs Scale B.
JUDGMENT
Wessels AJ
Introduction
[1] The applicant requires the record of a tender decision it seeks to review in
terms of Rule 53 of the Uniform Rules of Court. The applicant brought an
interlocutory application for the production of the full record that forms the basis
of the Rule 53 review. I am enjoined to consider only whether the first respondent
must produce that record, and in what form. The review itself, Part B of a separate
application, is not before me.
Background
[2] The first respondent awarded a bid for road and stormwater construction
in Geluksoord to the second respondent for R21 574 336,77. The applicant’s bid,
at R20 445 777,50, was lower. The first respondent disqualified the applicant’s
bid as non-responsive for lacking a rates clearance certificate. The applicant
disputes that finding and, in Part B, seeks to review and set aside the award.
[3] The applicant launched this application on 9 December 2025, against the
first respondent alone, seeking an order under rule 53(1)(b) compelling despatch
of the original record primarily and, in the alternative, compliance with a rule
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35(12) notice served on 30 September 2025. On 30 April 2026, this Court case -
managed the matter, directing that answering and replying affidavits and heads
of argument be filed in stages, culminating in argument of the application on 28
May 2026. Days before that hearing, the first respondent raised two further
points: that the second respondent's withdrawal from the awarded contract on 20
May 2026 had rendered the review moot and that the applicant had failed to give
notice under rule 30A before bringing this application. The Rule 30A point is
taken against both legs of the relief sought, being the Rule 53(1)(b) prayer and
the Rule 35(12) alternative. The hearing set down for 28 May 2026 was
postponed to 4 June 2026, on which date the matter came before me for argument.
I deal first with mootness, then Rule 35(12) and Rule 30A and finally with Rule
53(1)(b).
The application
[4] The applicant seeks, primarily, an order under Rule 53(1)(b) compelling
the first respondent to despatch the original record, its own bid document, the
second respondent’s bid document and the signed minutes of the Bid Evaluation
and Bid Adjudication Committees. In the alternative, it seeks compliance with a
rule 35(12) notice served on 30 September 2025.
[5] It is important to state that whether the award itself was lawful plays no
part in this judgment. What stands to be decided is only what must be produced
for Part B to proceed on a proper record.
Mootness
[6] Shortly before the hearing, the first respondent informed the applicant that
the second respondent had withdrawn from the contract. It has since placed this
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on affidavit and contends that the review, and with it this application, has become
moot. In reply, the applicant discloses that the Construction Industry
Development Board also deregistered the second respondent for submitting
fraudulent grading documents.
[7] I cannot determine the mootness point at this stage. Whether the second
respondent’s withdrawal leaves any live dispute is a question about the
consequences of a decision of the first respondent. Whether the first respondent’s
impugned decision, once the contract has come to an end, still has effect is a
question that cannot be answered on an interlocutory application confined to the
production of documents. It is for the court that hears Part B, not for this Court
on an application to compel. The facts bearing on mootness are much the same
as those before the Supreme Court of Appeal in HOD: Western Cape Education
Department and Others v Equal Education Law Centre and Others.
1 There, the
review had arisen from the plight of unplaced learners. By the time the matter
reached the SCA, those learners had already been placed, raising the question
whether that development had overtaken the review. The Court declined to
answer that question, holding that whether the delay rendered the review moot
must be determined by the court seized with the merits of that review and was not
a question before it on the interlocutory application concerning the record. The
same holds true in this application. Whether the second respondent’s withdrawal
from the awarded contract has overtaken the review is a matter for the court
hearing Part B, not for this Court on an application to compel production of the
record. It therefore follows that this point must fail.
1HOD: Western Cape Education Department and Others v Equal Education Law Centre and Others [2025]
ZASCA 116 para 26.
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Rule 35(12)
[8] The applicant’s alternative relief rests on a Rule 35(12) notice served on
the first respondent on 30 September 2025, calling for production of documents
referred to in its answering affidavit. The first respondent opposes this relief on a
single ground , being that R ule 35(12) does not apply of its own accord in
application proceedings. Rule 35(13) extends the discovery provisions of Rule
35, including subrule (12), to application proceedings, but only if a court so
directs. It reads as follows:
‘The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as the
court may direct, to applications.’ (emphasis added)
[9] In Rustenburg Local Municipality v Are Direng Transport and Labour
Hire and Another2, Petersen J from this Division, relying on Loretz v MacKenzie3
and Afrisun Mpumalanga v Kunene NO,4 held that a Rule 35(12) notice served in
application proceedings without a prior direction in terms of Rule 35(13) simply
does not apply.
[10] The applicant never sought and never obtained a direction in terms of Rule
35(13). Without that direction, Rule 35(12) does not apply, as was held in Are
Direng Transport.
5 The alternative relief sought under the applicant’s Rule
35(12) notice is accordingly not before me, to which end the first respondent’s
point on this issue succeeds. As the Rule 35(12) notice is not before me, the first
respondent’s Rule 30A objection to this leg of the relief need not be decided.
2Rustenburg Local Municipality v Are Direng Transport and Labour Hire and Another [2021] ZANWHC 61 paras
10 - 11.
3Loretz v MacKenzie 1999 (2) SA 72 (T).
4Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T).
5 Idem Are Direng, fn 2.
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Rule 53(1)(b)
[11] The first respondent’s second point in limine is the absence of a Rule 30A
notice. It contends that the applicant was required to give ten days’ notice in terms
of Rule 30A(1), allowing the first respondent to remove the cause of complaint
before it could apply to compel production of the record under Rule 53(1)(b) .
Furthermore, having given no such notice, this application is procedurally
incompetent from the outset.
[12] Rule 30A applies where compliance with a rule is sought and the relevant
rule has no procedure of its own with which compliance can be enforced. That
principle was established in Absa Bank Ltd v the Farm Klippan6 as follows:
‘Rule 30A has an important place in the Rules, in that, as I have stated, it provides a remedy
where none exists elsewhere. However, it could not have been intended by the drafters of Rule
30A to jettison the existing and effective remedies provided in the specific remedy Rules. If it
was so intended, it would render such remedies nugatory. The remedies in the specific remedy
Rules have always been effective and there is no reason to denude them of their efficacy.
I, therefore, find that an application may be made in terms of those Rules which provide a
specific remedy for failure to comply therewith without the applicant first having to give notice
in terms of Rule 30A or to follow the provisions thereof.’
[13] Rule 30A exists to give a defaulting party a chance to cure a complaint
before litigation becomes necessary. On that premise, Rule 30A assumes there is
something left to clarify, specify or supply a request whose scope needs defining
before the defaulting party can be expected to act. Rule 53(1)(b) does not contain
such uncertainty. It informs the decision -maker exactly what must be done
6 Absa Bank Ltd v the Farm Klippan 490 CC 2000 (2) SA 211 (W) at 214H-215B.
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(despatch the record to the registrar within fifteen days of the notice of motion).
This obligation does not depend on any request from the applicant and there is
nothing left for a further notice to specify. The first respondent had complete and
proper notice of everything required of it the moment it was served with the
review application. A Rule 30A notice , repeating that same instruction back to
the respondent, ten days before the applicant could act on its non -compliance,
would have added nothing the first respondent did not already know. That is
consistent with how this obligation has been approached in Murray and Others
NNO v Ntombela and Others
7 which quoted the following with approval:
‘...the obligation to produce the record automatically follows upon the launch of the
application, however ill-founded that application may later turn out to be.’
The obligation that R ule 53(1)(b) imposes is automatic in the sense that it does
not wait on the applicant’s request, which is why the notice-and-cure function of
Rule 30A finds no application here. An obligation that requires nothing further
from the party seeking to enforce it is not the kind of default Rule 30A was
intended to cure. As a result, the Rule 30A point fails.
Rule 53(1)(b): format of record
[14] What remains is whether the first respondent has complied with Rule
53(1)(b). Rule 53(1)(b) and (3) were substituted by GN R6975 of 24 December
2025, with effect from 30 January 2026. The most notable amendment to Rule 53
for purposes of this judgment concerns the amendment of subrule (3), which now
reads as follows:
7 Murray and Others NNO v Ntombela and Others [2024] ZASCA 24 para 20.
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‘(3)(a) The registrar shall make available to the applicant a copy of the record sent to him or
her referred to in subrule (1)(b), in the following
manner —
(i) through the e -justice system where operational, if the applicant or his or her legal
representative has access to the e-justice system;
(ii) to the applicant’s or his or her legal representative’s electronic mail address, if the applicant
or his or her legal representative does not have access to the e-justice system but has chosen an
electronic mail address for service; or
(iii) a hard copy, upon payment of the prescribed copy charge.
(b) The applicant shall thereupon furnish the registrar with a copy of such portions of the record
as may be necessary for the purposes of the review, through the e -justice system where
operational, by electronic mail or by lodging a hard copy with the registrar.
(c) The costs of transcription, if any, shall be borne by the applicant and shall be costs in the
cause.’
[15] The obligation to despatch the record in this matter arose, and this
application was brought, before that date, under the rule as it then read. I decide
this application on the rule as it stood when the obligation arose and when the
application was launched.
[16] The first respondent states that it has complied t o the extent that it filed a
physical copy with the Registrar and uploaded the record to CaseLines. The first
respondent points out that R ule 53(1)(b) does not use the word ‘original’ and
argues that nothing more than completeness of the record is required. Rule
53(1)(b) and (3), as they read when the obligation arose, provided:
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(b) ‘calling upon the magistrate, presiding officer, chairperson or officer, as the case may be,
to despatch, within 15 days after receipt of the notice of motion, to the registrar the record of
such proceedings sought to be corrected or set aside, together with such reasons as the
magistrate, presiding officer, chairperson or officer, as the case may be is by law required or
desires to give or make, and to notify the applicant that such magistrate, presiding off icer,
chairperson or officer, as the case may be has done so.’
(2) …
(3) The registrar shall make available to the applicant the record despatched as aforesaid upon
such terms as the registrar thinks appropriate to ensure its safety, and the applicant shall
thereupon cause copies of such portions of the record as may be necessary for the purposes of
the review to be made and shall furnish the registrar with two copies and each of the other
parties with one copy thereof, in each case certified by the applicant as true copies. The costs
of transcription, if any, shall be borne by the applicant and shall be costs in the cause. (emphasis
added)
[17] On the plain reading of Rule 53(1)(b), it obliges the decision maker to
despatch the record, not a copy of it. Rule 53(3) then requires the registrar to hold
what was despatched upon such terms as the registrar thinks appropriate to ensure
its safety. It directs the applicant to make copies of the necessary portions and
furnish them certified as true copies. Rule 53(3) would only be sensible if what
reaches the registrar in terms of Rule 53(1)(b) is the original. Safekeeping is not
a concern for something that can be reprinted. A copy, moreover, can only be
certified as a true copy against an authentic source. If Rule 53(1)(b) only required
a copy, subrule (3) would have the applicant certifying a copy of a copy, which
would lead to an absurd result. Had the Rules Board meant that a copy of the
record would suffice at the outset, it would have said so explicitly.
record would suffice at the outset, it would have said so explicitly.
[18] I found no authority directly on this point and none was placed before me.
The conclusion I reached follows from the ordinary meaning of the text of Rules
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53(1)(b) and (3), read as a whole rule rather than in isolation. The first respondent
has not despatched the original record. Photocopies and an electronic upload do
not satisfy the prescripts of Rule 53(1)(b). The first respondent’s contention that
a copy suffices under Rule 53(1)(b) accordingly fails.
Costs
[19] Costs ordinarily follow the result, but since the applicant did not succeed
on every point, the issue calls for brief comment. The first respondent’s objection
to Rule 35(12) succeeded and that alternative relief falls away, but Rule 35(12)
was pleaded only in the alternative. The applicant’s primary relief was always
based on Rule 53(1)(b) and it succeeded in that respect, while the first
respondent’s mootness and Rule 30A objections both failed. The applicant is the
substantially successful party and there is nothing before me to justify departing
from the ordinary rule, or from the scale the applicant itself sought in its notice
of motion. The first respondent must pay the costs of this application, including
the costs reserved on 30 April 2026 and the costs of 28 May 2026, on the party -
and-party Scale B.
Order
[20] In the result, the application to compel succeeds and the following order is
granted:
1. The application to compel is granted.
2. The first respondent is directed, within ten days of this order, to
despatch to the registrar of this court the original record of the
proceedings sought to be reviewed in Part B, comprising:
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2.1 the applicant's originally submitted bid document for bid
LTLM2025-007A;
2.2 the second respondent's originally submitted bid document for
bid LTLM2025-007A;
2.3 the originally signed minutes of the Bid Evaluation Committee
meeting of 23 July 2025; and
2.4 the originally signed minutes of the Bid Adjudication
Committee meeting of 28 July 2025.
3. The first respondent shall notify the applicant in writing, within five
days, of compliance with paragraph 2.
4. The first respondent shall pay the costs of this application, including
the costs reserved on 30 April 2026 and the costs of 28 May 2026, on
the party and party scale, Scale B.
___ _______________
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
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Appearances:
For the applicant: Adv E Malherbe
Instructed by: Stan Fanaroff and Associates
c/o CJP Oelofse Attorneys
Mahikeng
For the first respondent: Adv SD Mbeki
Instructed by: Leepile Attorneys
c/o Motshabi and Associates
Mahikeng