Batumile Investments (Pty) Ltd v Rustenburg Local Municipality and Others (M247/2023) [2025] ZANWHC 123 (23 July 2025)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: M247/2023

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

In the matter between:

BATUMILE INVESTMENTS (PTY) LTD Applicant AND RUSTENBURG LOCAL MUNICIPALITY 1st Respondent MUNICIPAL MANAGER: RUSTENBURG LOCAL MUNICIPALITY 2nd Respondent NTIYISO CONSULTING 3rd Respondent MANO A RONA BUSINESS ENTERPRISE 4th Respondent PFUKANI-KUSILE CONSULTING 5th Respondent PHUMLELE CONSULTING ENGINEERS 6th Respondent ECO SOUTH PARTNERSHIP 7th Respondent

DATE OF HEARING

: 20 FEBRUARY 2025

DATE OF JUDGMENT : 23 JULY 2025

FOR THE APPLICANT : ADV. CHWARO

FOR THE RESPONDENT : ADV. LAUBSCHER

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives via email. The date and time for hand-down is deemed to be 10h00 on 23 July 2025.

ORDER

Resultantly, the following order is made:

(i) The application is dismissed with costs.

(ii) Such costs shall be paid by the applicant on a party-and-party basis on Scale C in terms of Rule 67A of the Uniform Rules of Court.

Summary

Failure to award a tender within the specified tender validity period - tender lapsed - mootness. Just an equitable remedy?

HENDRICKS JP

Introduction

[1] The first respondent, the Rustenburg Local Municipality (RLM)[1] invited tenders for the appointment of a service provider for the development of a strategic local economic development program and implementation plans for a period of three years. The tender validity period was extended to 14 July 2022 and again to 14 September 2022.

[2] The Bid Evaluation Committee (BEC) and the Bid Adjudication Committee (BAC) considered the bids by the tenderers. A recommendation that the applicant, Batumile Investments Pty Ltd (Batumile), be appointed as the successful bidder was made on 13 July 2022. The Municipal Manager (MM) of the RLM, who has delegated authority[2] to appoint a service provider, took his decision on 11 October 2022, after the tender validity period has lapsed, to readvertise the tender.

[3] Aggrieved by the failure of the MM to take a decision timeously and before the lapsing of the tender validity period, Batumile launched this review application. It is contended that the failure of the MM to decide on the appointment of Batumile as the successful tenderer was a deliberate act aimed at encroaching upon its right to a procurement process that is fair, effective and efficient.

[4] At first Batumile seek to review and set aside the decision not to award a tender and that the failure to make a decision be remitted to RLM (first respondent) and the MM (second respondent) for reconsideration. Alternatively, that this Court directs the RLM and MM to award the tender to Batumile. Subsequently, Batumile seek an amendment to the Notice of Motion and the relief sought. It prayed that the failure of the MM to take a decision within the tender validity period, be declared unlawful and susceptible to be reviewed in accordance with s 6 (2) (g)[3] read with s 6 (3) (b)[4] of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Furthermore, that this Court grants such just and equitable remedy as it deems fit in accordance with the provisions of s 7 (2) of PAJA[5] read together with the provisions of s 172[6] of the Constitution of the Republic of South Africa Act 108 of 1996. The relief as prayed for in the Amended Notice of Motion does not relate to the decision by the MM taken on 11 October 2022 to readvertise the tender.

[5] Condonation for the late amendment of the Notice of Motion was granted in the interest of justice, as no prejudice were to be suffered by the RLM and MM, as first and second respondents respectively, as well as any other respondent, who in any event did not oppose the amendment. The contention by the RLM and MM are however that the Amended Notice of Motion is equally bad in law and stands to be dismissed. Submissions were made in this regard.

[6] Certain defences were raised in limine by the RLM and MM. At first, it was contended that Batumile failed to exhaust the available internal remedies as provided for in s 7 (2) (a)[7] of PAJA read with s 62 (1) of the Local Government: Municipal Systems Act 56 of 2003 (Systems Act). S 62 (1) of the Systems Act provides that: “A person whose rights are affected by a decision taken by our political structure, political office bearer, councillor or staff member of a municipality in terms of a power or duty delegated or sub-delegated by a delegating authority to the political structure, political office bearer, councillor or staff member, may appeal against the decision by giving written notice of the appeal and reasons to the municipal manager within 21 days of the date of notification of the decision.” The appeal authority to which the aforementioned appeal lies must in terms of section 62 (3) of the said act consider the said appeal and may: “… confirm, vary or revoke the decision…”

[7] In terms of s 7 (2) (a) of PAJA, a court or tribunal is prohibited from reviewing an administrative action in terms of this act, unless any internal remedy provided for in any other law has first been exhausted. S 7 (2) (c) of PAJA states that a court or tribunal may, in exceptional circumstances and on an application by the person concerned, exempt such person from the obligation to exhaust any internal remedy, if the court or tribunal deems it in the interest of justice.

[8] It is common cause that Batumile did not exhaust any internal remedy that was at its disposal. Neither did Batumile applied to this Court for an exemption to exhaust any internal remedy as provided for in s 6 (2) of the Systems Act, for its failure to exhaust the internal appeal process. Batumile only addressed a letter on the eve of the expiry of the tender validity period to enquire what the state of the tender was. This, with due respect, was too little too late.

[9] In the Maximum Profit Recovery (Pty) Ltd case, supra, the Full Court of this division stated the following:

“In this matter the applicant did not exhaust the aforementioned internal remedy and as such the applicant is barred from approaching this Court for relief in term of the PAJA if it has not done so.[8]”

[10] In DDP Valuers Pty) Ltd v Madibeng Local Municipality (233/2015) [2015] ZASCA 146 (1 October 2015), the following is stated at paragraph 23:

“[23] In my view, the only other provision that could have been applicable is s 62 of the Local Government: Municipal Systems Act 32 of 2000 (the Systems Act), which is a general appeal provision for municipalities and does constitute an internal remedy contemplated in s 7(2) of the PAJA. Unlike reg 50 of the regulations, in that section, the appeal authority is empowered after considering the appeal to confirm, vary or set the decision aside, provided such variation will not adversely affect the rights that have already accrued to the preferred bidder. In the majority judgment of City of Cape Town v Reader and others, Lewis JA considered the meaning of s 62 of the Systems Act to be that a decision can only be appealed against in terms of that section, if the outcome of the appeal does not detract from the rights of the successful applicant.”

[11] The defence of the lack, to exhaust internal remedies was pertinently raised by the RLM & MM in their answering affidavit. In response thereto, Batumile states in its replying affidavit that internal remedies provided for in s 62 (1) of the Systems Act are not adequate or similar to the exclusive constitutional powers vested upon a court of law to review an administrate decision and pronounce on a just and equitable remedy. This may well be the case. However, that does not

at all entitle a litigant not to exhaust the prescribed internal remedies available and simply side-step it and approach a court or tribunal.

[12] Batumile was well aware of the validity period of the tender which was twice extended. This much is common cause. It did not take any steps to enquire about the delay in the awarding of the tender until the proverbial eleventh hour, literally on the eve of the expiry of the last extended validity period. Much more could have been done timeously to enable itself to enforce its rights. This did not happen. As alluded to earlier, Batumile did not apply for exception from exhausting its internal remedies in terms of s 7 (2) (c) of PAJA[9]. Such an application could have been made to this Court.[10] This was not done.

[13] The validity period of the tender has lapsed without the tender being awarded. When the validity period of a tender expired without the tender being awarded, the process comes to an end and it is regarded as been completed, albeit unsuccessfully though[11]. If there is a failure to award a tender within the validity period, a further opportunity has to be afforded to all interested parties. That explains why the tender was readvertised by the new MM. Once the validity period expired, there were no valid bids in existence and an award could not be validity made[12]. There is no procurement process underway anymore.

[14] This being the case, it simply means that the tender cannot be reviewed, as this Court cannot resurrect the tender, as its validity period has lapsed. It was submitted on behalf of Batumile that the failure of the then MM to decide on the awarding of the tender was a deliberate act aimed at encroaching upon the right to a procurement process that is fair, effective and efficient. There is, however, no cogent evidence to prove this allegation. The new MM took a decision on 11 October 2022 to readvertise the tender. This decision was taken after the expiry of the tender validity period[13].

[15] Batumile contended that s 6 (2) (g) read with s 6 (3) and 8 (2)[14] of PAJA apply in situations of the present nature, where there was a failure to take a decision by the public functionary within the time period stipulated. The previous MM did not take a decision before the expiry date of the validity period being 14 September 2022. Thus, so it is further contended, this matter clearly falls within the prescript of s 6 (2) (g) of PAJA. This may well be so.

[16] However, Batumile failed to take steps timeously to enforce its rights. A letter should have been written much earlier than on the eve of the expiry of the validity period. If there was a failure to reply by the then MM, this Court could then have been approached for a mandamus, even on truncated time periods, to force the then MM to make a decision, with auxiliary relief, if necessary. The proverbial horse has bolted.

[17] Batumile furthermore contended that if this Court finds that its right to an administrative action that is lawful, reasonable and procedurally fair has been encroached upon by RLM and the MM, then an appropriate order for compensation must be made. This is based on the contention that there are exceptional circumstances present in that although there is an infringement of Batumile’s fair administrative justice rights, this Court cannot revive the lapsed tender and there can be no order directing RLM and/or MM to do anything pertaining to the lapsed tender.

[18] This contention by Batumile amounts in effect amounts to an admission, insofar as the lapsed validity period of the tender and therefore the tender itself is concerned. This Court however finds that the validity period has lapsed and so too the tender, without an infringement of the right to fair administrative justice. To reiterate, Batumile did not timelessly enforced its rights to fair administrative justice. Had it done so, it would not have been without any recourse.

[19] The concession by Batumile in its heads of argument filed that this Court cannot revive the lapsed tender and that there can be no order directing the municipality (RLM/MM) to do anything pertaining to the lapsed tender, brings the issue of mootness to the fore. This Court cannot give an order that will have no practical effect. There is no tender in existence and nothing was done timelessly by Batumile to enforce its rights. As alluded to, there is no infringement of Batumile’s right to fair administrative action. The validity period of the tender expired and the procurement process (tender) came to an end or had been completed, albeit unsuccessfully. Therefore, this Court cannot grant just and equitable relief in terms of the non-existent tender. The relief sought will be without legal effect and consequently moot[15]. There can be no consequential relief in the absence of a declaration of invalidity.

[20] The awarding of just and equitable compensation is in the discretion of the court. However, there must be sufficient facts and circumstances placed before a court to enable the court to determine a just and equitable remedy, such as for example any damages suffered. A court cannot thumb-suck what an appropriate amount of compensation might be in the absence of any facts and circumstances that informs it. No case has been made out by Batumile for the granting of just and equitable relief. I cannot phantom an appropriate amount of compensation under the circumstances of this case, especially where no order is made to the effect that there was unfair administrative action. The application by Batumile should be dismissed.

[21] As far as costs are concerned, the general rule that applies is that costs follows the event and should be awarded in favour of the successful litigant. I can find no plausible, cogent reason to deviate from this principle, having due regard to the circumstances of this case. This is also by no means an uncomplicated or straightforward case. The complexity of this case warrants that costs be awarded on a higher scale. Under the circumstance, I am of the considered view that Scale C is justified.

Order

[22] Resultantly, the following order is made:

(i) The application is dismissed with costs.

(ii) Such costs shall be paid by the applicant on a party-and-party basis on Scale C in terms of Rule 67A of the Uniform Rules of Court.

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

[1] The Rustenburg Local Municipality is a municipality as defined in S 1 of the Local Government: Municipal Systems Act 32 of 2000, situated in the Nort West Province.

[2] See: Maximum Profit Recovery (Pty) Limited v Rustenburg Local Municipality and Others [2005] 1 All SA 441 (NWM), paragraph 39.

[3] Section 6 (2) (g) of the Promotion of Administrative Justice Act 3 of 2000 provides: “6 Judicial review of administrative action (1) … (2) A court or tribunal has the power to judicially review an administrative action if- (a) … (g) the action concerned consists of a failure to take a decision; (h) …”

[3] Section 6 (2) (g) of the Promotion of Administrative Justice Act 3 of 2000 provides:

“6 Judicial review of administrative action

(1) …

(2) A court or tribunal has the power to judicially review an administrative action if-

(a) …

(g) the action concerned consists of a failure to take a decision;

(h) …”

[4] Section 6 (3) (b) of the Promotion of Administrative Justice Act 3 of 2000 provides: “(3) If any person relies on the ground of review referred to in subsection (2) (g), he or she may in respect of a failure to take a decision, where- (a) (i) … (b) (i) an administrator has a duty to take a decision; (ii) a law prescribes a period within which the administrator is required to take that decision; and (iii) the administrator has failed to take that decision before the expiration of that period, institute proceedings in a court or tribunal for judicial review of the failure to take the decision within that period on the ground that the administrator has a duty to take the decision notwithstanding the expiration of that period.”

[4] Section 6 (3) (b) of the Promotion of Administrative Justice Act 3 of 2000 provides:

“(3) If any person relies on the ground of review referred to in subsection (2) (g), he or she may in respect of a failure to take a decision, where-

(a) (i) …

(b) (i) an administrator has a duty to take a decision;

(ii) a law prescribes a period within which the administrator is required to take that decision; and

(iii) the administrator has failed to take that decision before the expiration of that period, institute proceedings in a court or tribunal for judicial review of the failure to take the decision within that period on the ground that the administrator has a duty to take the decision notwithstanding the expiration of that period.”

[5] Section 7 (2) of the Promotion of Administrative Justice Act 3 of 2000 provides: “7 Procedure for judicial review (1) … (2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted. (b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act. (c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice. (3) …”

[5] Section 7 (2) of the Promotion of Administrative Justice Act 3 of 2000 provides:

“7 Procedure for judicial review

(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.

(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in

paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.

(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.

(3) …”

[6] Section 172 of the Constitution of the Republic of South Africa Act 108 of 1996 provides: “172. Powers of courts in constitutional matters.- (1) When deciding a constitutional matter within its power, a court (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including- (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. (2) (a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court. (b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct. (c) National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court. (d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.”

[6] Section 172 of the Constitution of the Republic of South Africa Act 108 of 1996 provides:

“172. Powers of courts in constitutional matters.-

(1) When deciding a constitutional matter within its power, a court

(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) may make any order that is just and equitable, including-

(i) an order limiting the retrospective effect of the declaration of invalidity; and

(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

(2) (a) The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

(b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.

(c) National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.

(d) Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.”

[7] See footnote 5, supra.

[8] See also: Groenewald NO & Others v M5 Development (Cape (Pty) Ltd 2010 (5) SA 82 (SCA) paragraph 24. Amandla GCF Construction CC and Another v Municipality Manager of Saldanha Bay Municipality and Others 2018 (6) SA 63 (WCC) at paragraph 33 and 34.

[9] Section 7 (2) (c) of the PAJA stipulates that: “A court or tribunal may, in exceptional circumstances and on application by the respondent concern, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.”

[10] See: Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company (Pty) Ltd and Others [2013] 2 All SA 251 (SCA) at paragraph 116.

[11] See: Telkom SA v Meriod Training (Pty) Ltd and Others, Bilati Solutions (Pty) Ltd v Telkom SA and Others (Telkom SA) [2011] ZAGPPHC1.

[12] SAAB Gruntek Defence (Pty) Ltd v South African Police Service and Others [2016] 3 All SA 669 (SCA).

[13] Joubert Galpin Searle Inc and Others v Road Accident Fund and Others 2014 (4) SA 148 (ECP).

[14] “8 Remedies in proceedings for judicial review (1)… (2) The court or tribunal, in proceedings for judicial review in terms of section 6 (3), may grant any order that is just and equitable, including orders- (a) directing the taking of the decision; (b) declaring the rights of the parties in relation to the taking of the decision; (c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; or (d) as to costs.”

[14] “8 Remedies in proceedings for judicial review

(1)…

(2) The court or tribunal, in proceedings for judicial review in terms of section 6 (3), may grant any order that is just and equitable, including orders-

(a) directing the taking of the decision;

(b) declaring the rights of the parties in relation to the taking of the decision;

(c) directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court or tribunal considers necessary to do justice between the parties; or

(d) as to costs.”

[15] See: Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional Affairs (104/2022) [2023] ZASCA 35 (31 March 2023) at paragraph 12 where the Supreme Court of Appeal stated: "The general principle is that a matter is moot when a court's judgment will have no practical effect on the parties. This usually occurs where there is no longer an existing or live controversy between the parties. A court should refrain from making rulings on such matters, as the court's decision will merely amount to an advisory opinion on the identified legal questions, which are abstract, academic or hypothetical and have no direct effect; one of the reasons for that rule beinq that a court's purpose is to adjudicate existing legal disputes and its scarce resources should not be wasted away on abstract questions of law. In President of the Republic of South Africa v Democratic Alliance, the Constitutional Court cautioned that 'courts should be loath to fulfil an advisory role, particularly for the benefit of those who have dependable advice abundantly available to them and in circumstances where no actual purpose would be served by that decision, now'.”