KET Civils CC v Member of the Executive Committee: Police, Roads & Transport, Free State and Others (497/2022 & 820/2022) [2024] ZASCA 56 (19 April 2024)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

Not reportable

Case no: 497/2022 & 820/2022

In the matter between

KET CIVILS CC APPLICANT

and

THE MEC: POLICE, ROADS

& TRANSPORT, FREE STATE FIRST

RESPONDENT

NWETI CONSTRUCTION (PTY) LTD SECOND RESPONDENT

DOWN TOUCH (PTY) LTD THIRD

RESPONDENT RAUBEX

NODOLI CONSTRUCTION JV FOURTH

RESPONDENT

TAU PELE CONSTRUCTION (PTY) LTD FIFTH RESPONDENT

SEDTRADE (PTY) LTD SIXTH

RESPONDENT

Neutral citation: KET Civils CC v The Member of the Executive Committee: Police, Roads & Transport, Free State and Others (497/2022 & 820/2022) [2024] ZASCA 56 (19 April 2024)

Coram: MOCUMIE ADP, ZONDI and NICHOLLS JJA

Heard: 15 February 2024

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email, published on the Supreme Court of Appeal website, and released to SAFLII. The date and time for hand-down is deemed to be 11h00 on 19 April 2024

Summary: Civil procedure – Section 17(2)(f) of the Superior Courts Act 10 of 2013 – whether a proper case for reconsideration in terms of s 17(2)(f) is made out – a court may not make a settlement agreement an order of court without hearing an interested party.

ORDER

On appeal from: Free State Division of the High Court, Bloemfontein (Mhlambi J, sitting as a court of first instance):

1 Leave to appeal is granted.

2 The appeal against the order of the high court dismissing the application for leave to appeal is set aside and substituted with the following order:

‘(a) Leave to appeal is granted.

(b) Paragraphs 1 to 5 of the second merits order are set aside and replaced with the following order:

(i) An order reviewing and setting aside the decision of the first respondent, acting in his capacity as the accounting officer of the Department of Police, Roads & Transport, Free State, in appointing KET Civils CC and second to sixth respondents on the 21st of February 2019 in the panel PR&T/BID06/2018/19 for the upgrading, periodic routine and special maintenance of all the Free State roads for the Department of Police, Roads & Transport for the duration of 36 (thirty six) months and any contract made under this panel.

(ii) An order in terms of s 172(1)(a) of the Constitution of the Republic of South Africa, 1996 declaring that the conduct of the first respondent in constituting the panel as set out above is inconsistent with the provisions of s 217 of the Constitution and is invalid to the extent of its inconsistency.

(iii) An order in terms of s 172(1)(b)(ii) of the Constitution, suspending the declaration of invalidity of the contracts of the second to sixth respondents and emanating from the panel and any extensions thereunder until the said contracts are completed.

(iv) An order in terms of s 172(1)(b)(ii) of the Constitution, that the orders granted in paragraphs (i) and (ii) above shall not affect the rights of KET Civils CC to pursue any claims for payment emanating from its contract/s and any extensions thereunder. For the avoidance of any doubt, the dispute resolution mechanisms under the contracts shall endure post any termination of the contracts.’

3 The orders set out above are with effect from 29 April 2021.

4 The first respondent to pay the costs of the appeal, including the costs of the third to the fifth respondents up until 23 June 2023.

5 In relation to the costs which were incurred after 23 June 2023, each party is ordered to pay its own costs.

JUDGMENT

Mocumie ADP (Zondi and Nicholls JJA concurring)

[1] This is an application brought by KET Civils CC (KET) in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013 (the Superior Courts Act) for the reconsideration of this Court’s order dismissing KET’s petition for leave to appeal. Thereafter, KET applied to the President of this Court, in terms of s 17(2)(f) of the Superior Courts Act for her reconsideration of their dismissal of its application. The President referred the reconsideration application for oral argument in terms of s 17(2)(d) of the Superior Courts Act.

[1] Liesching and Others v S and Another [2016] ZACC 41; 2017 (4) BCLR 454 (CC); 2017 (2) SACR 193 (CC).

[2] Ibid paras 55-56.

[3] See Department of Transport and Others v Tasima (Pty) Limited [2016] ZACC 39; 2017 (1) BCLR 1 (CC); 2017 (2) SA 622 (CC) (9 November 2016), Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal [2013] ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA

579

Africa (Pty) Ltd [2017] ZACC 5; 2017 (6) BCLR 730 (CC); 2017 (4) SA 223 (CC) para 37 and State

Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited [2017] ZACC 40; 2018 (2) BCLR 240 (CC); 2018 (2)

SA 23 (CC) para 41.

[4] Rule 42(1)(b) empowers a court to amend/correct its order mero motu or if approached by any party on a patent error which does not affect the substance of the order and or judgment.

[5] Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others [2018] ZACC 33; 2019 (2) BCLR 165 (CC); 2019 (5) SA 1 (CC) para 2.

[6] Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited [2019] ZACC 15; 2019 (6) BCLR 661 (CC); 2019 (4) SA 331 (CC) para 25.

[6] Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited [2019] ZACC 15; 2019 (6) BCLR

661 (CC); 2019 (4) SA 331 (CC) para 25.

[7] Ibid para 25.

[8] Eke v Parsons [2015] ZACC 30;2015(11) BCLR 1319 (CC); 2016 (3) SA 37 (CC).