Special Investigating Unit v Bendalo Holdings (Pty) Ltd and Another (EC23/2024) [2025] ZAST 11 (10 July 2025)

IN THE SPECIAL TRIBUNAL ESTABLISHED IN TERMS OF SECTION 2 (1) OF THE SPECIAL INVESTIGATIONS UNIT AND

SPECIAL TRIBUNALS ACT 74 OF 1996

(REPUBLIC OF SOUTH AFRICA)

HELD VIRTUALLY

CASE NO: EC23/2024

(1) REPORTABLE:NO

(2) OF INTEREST TO OTHER JUDGES: YES

(3) REVISED: YES

Date: 10/07/2025

In the matter between: THE SPECIAL INVESTIGATING UNIT APPLICANT and BENDALO HOLDINGS (PTY) LTD FIRST RESPONDENT BULELANI BOOI SECOND RESPONDENT SOUTH AFRICAN SOCIAL SECURITY AGENCY THIRD RESPONDENT

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 10 July 2025 at 10:00.

JUDGMENT

Mashile J

Introduction

[1] This is an application by which the Applicant (“the SIU”) seeks to review and set aside the decision of the Third Respondent (“SASSA”) to award Bid no. SASSA 08/19/GA/EC to the First Respondent (“Bendalo”) for the supply of food parcels in terms of the Social Relief Distress (“SRD”). Additionally, the SIU seeks a declarator that the decision to appoint Bendalo was unlawful, irregular, invalid and unconstitutional. Once this Tribunal has so pronounced on the decision in terms of section 172(1)(a) of the Constitution then it is to exercise its discretion either to craft a suitable remedy or grant an order that is just and equitable as envisaged in section 172(1)(b).

[2] Bendalo opposes the application and has raised two legal points, namely that the SIU lacks locus standi and that it failed to join the National Treasury. Should these points be unsuccessful, Bendalo will endeavour to persuade this Tribunal that the procurement process that ultimately led to the award was free of irregularities and SASSA was not overcharged. As such, if the decision was validly taken, the application is ill-conceived and should be dismissed. Perhaps it is appropriate at this point to mention that Bendalo had initially opposed the condonation application of the SIU, but at the beginning of the proceedings, it withdrew its resistance. The withdrawal has therefore obviated the need to consider and deal with the condonation.

Factual Matrix

[3] The events that led to this application are largely common cause, but the parties are at variance on their construction, hence they are before this Tribunal. Ordinarily, I would have started with the preliminary points raised by Bendalo, but I thought it would be appropriate to describe the background facts first and then incorporate them before analysing the facts and law. Since the parties agree on the facts, albeit with limited exceptions, I will take the liberty of using the facts as set out in the founding affidavit.

[4] On 14 June 2019, SASSA advertised Bid No. SASSA 08/19/GA/EC for the supply of SRD Relief Parcels. The duration of the tender was 4 years. On 19 June 2019, SASSA held a non-compulsory briefing session to brief potential bidders on what it required for a successful bid for the tender. In July 2019, SASSA appointed the Bid Evaluation Committee (“the BEC”). The BEC is in terms of the SASSA Supply Chain Management Policy (“SCM”) responsible for the evaluation of bids received in accordance with the criteria specified in the bid documentation.

[5] The BEC evaluated and concluded the bids on 5 August 2019 and 18 October 2019, respectively. The Bid Adjudication Committee (“the BAC”) held a meeting on 24 October 2019, during which it recommended to SASSA’s Chief Executive Officer (“CEO”) that four suppliers be awarded the tender. As per the SASSA SCM Policy, the BAC is appointed in writing by the Accounting Authority. It is responsible for the adjudication of bids through recommendations that it would have received from the BEC. The BAC would, in turn, propose to the Accounting Authority on the award of the bid.

[6] The suppliers that were recommended were Kwasa, Bendalo, Mtino Enterprise and Mortaboard Solutions. The CEO, Ms Memela-Khambula, stated that the BAC spotted possible irregularities in September 2019. In consequence, it sent the matter back to the BEC for reconsideration. This led to a delay because of which the process was only concluded on 26 October 2019. The bid’s validity period is 90 days. When SASSA calculated the 90-day period, it noted that it would be elapsing on Saturday, 5 October 2019. Owing to the delay in the BAC sending the matter back to the BEC, the latter required additional time to conclude and sent a request for the bid validity extension on Friday, 4 October 2019, to suppliers for the extension of the bids.

[7] On 8 October 2019, SASSA sought advice from the National Treasury on whether the process of giving bidders only one day to respond to the request for the extension of the bid validity period was fair, or whether it could result in the entire process being declared irregular. In response, the National Treasury stated that the short notice that SASSA gave to the bidders compromised the fairness of the process. It said further that the short notice would constitute a breach of sections 217(1) and 38(1)(a)(iii) of the Constitution and the Public Finance Management Act 1 of 1999 (“PFMA”) respectively. The National Treasury then recommended that SASSA cancel and re-advertise the tender, and conclude by the end of June 2020.

[8] On 19 December 2019, SASSA sought approval from the National Treasury to depart from the normal procurement process. It aimed to utilise the service providers who had met the functionality requirements during the evaluation process of the cancelled tender, and to retain them for six months. The explanation proffered for this was that, according to the Government Printing Works’ Schedule, no advertising could take place from 15 December 2019 to 15 January 2020. On 31 January 2020, the National Treasury reacted positively to the request, albeit with a proviso that SASSA would submit cost estimations for 6 months to the National Treasury for verification. It also imposed a further condition that SASSA would finalise the bidding process within the extension period.

[9] On 13 March 2020, SASSA through its Supply Chain Management, obtained quotations from bidders who had met the functionality requirements of the cancelled tender in respect of the Eastern Cape region. The closing date for the bid process was 24 March 2020. The four suppliers and their prices were recorded as:

9.1 Mortarboard Solutions: R1 436.06 per food parcel;

9.2 Kwasa:

R1 359.18 per food parcel;

9.3 Bendalo:

R1 371.27 per food parcel; and

9.4 Mtino Enterprise submitted its quotation after the closing date and was, as such, disqualified.

[10] On 24 March 2020, Ms D Dunkerley, the Executive Manager: Grants Administration, issued a memorandum for the provision of SRD parcels amid the Covid-19 pandemic to all the Acting/Regional Executive Managers. The purpose of the memo was to provide guidelines for the provision of Social Relief parcels to individuals and people housed in shelters amid the Covid-19 pandemic. On 25 March 2020, the Chief Financial Officer of SASSA appointed the BEC. On 25-29 March 2020, the BEC evaluated the quotations. It recommended all three suppliers subject to Mortaboard and Kwasa clearing their tax issues. The former failed to clear those issues and was consequently disqualified.

[11] On 30 March 2020, Bendalo received a letter advising it that SASSA had made an award to it to supply SRD food parcels at a cost of R1 371.27 per food parcel. Bendalo accepted the award on 31 March 2020. On 1 April 2020, SASSA and Bendalo concluded a Service Level Agreement in terms of which Bendalo would provide food parcels at a new base price of R1 200.00. Although the Service Level Agreement is dated 1 April 2020, it was established that it was in fact signed on 23 April 2020 and then backdated by the parties to 1 April 2020. The provision of services in terms of the agreement commenced on 1 April 2020. On 8 April 2020, SASSA issued a revised letter of award to Bendalo for the new food parcel price of R1 200.00. Bendalo accepted the new amount.

[12] On 5 June 2020, SASSA advertised Bid no SASSA·55-19-GA-EC for the supply and issuing of SRD Relief Parcels for a period of 3 years for the Eastern Cape Province with a closing date of 26 June 2020. On 27 July 2020, the Executive Manager: Grant Administration wrote to the Chairperson of the BAC requesting the BAC to cancel the tender. The explanation presented for this cancellation was that the Auditor-General had done a proactive audit on food parcel distribution between April and May 2020. The Auditor-General had identified areas of concern, including internal control deficiencies, excessive administration costs of the food parcels, challenges of logistics in managing the SRD and SASSA’s risk of reputational damage.

[13] On 6 August 2020, the BAC recommended the discontinuation of the Bid for the second time. On 14 August 2020, the CEO of SASSA informed the National Treasury that it was seeking to cancel the tender for the second time. She attributed the cancellation to the Auditor-General’s findings. On 7 September 2020, the National Treasury granted permission for the cancellation of the Bid for the second time.

[14] The CEO of SASSA deposed to an affidavit declaring, amongst other things, that:

14.1 The initial cancellation of the tender (08/19/GA/EC) was because of an initial delay in the tender consideration process as possible irregularities were spotted by the BAC in September 2019 and they sent the matter back to the BEC for reconsideration. This led to the expiry of the 90-day tender validity period as detailed above. This eventually led to the cancellation of the tender at the direction of the National Treasury.

14.2 She further stated that the contracts were not irregular. The procurement process undertaken was intensively audited by the office of the Auditor-General and the expenditure was not classified as irregular. The National Treasury did not find it irregular either.

14.3 She stated that there is no need to backdate an agreement because the date of signature of the agreement does not always have to correspond with the date of the implementation of the agreement.

14.4 There was compliance with SCM prescripts and processes.

14.5 The procurement of service providers for the SRD was not for the special Covid-19 grant.

14.6 The procurement and selection of procurement strategy as well as the application of a deviation took place prior to the declaration of a state of disaster due to the pandemic. Therefore, there was no direct relationship between the procurement or Covid-19 and the procurement under bid 08/19/GA.

Assertions

[15] The SIU asserts that SASSA’s explanation was that the cancellation of the Bid by the National Treasury in November 2019 warranted the adoption of urgent measures in the appointment of suppliers constituting a deviation from the usual procurement process as the delivery of the SRD food parcels had to take place almost immediately. Moreover, Government Printing Works had explained that it would not be possible to advertise during the period, 15 December 2019 to 15 January 2020. It was in that spirit that it sought permission from the National Treasury to depart from the normal procurement process, requesting that it be allowed to appoint those suppliers which had met the functionality requirement during the evaluation of the cancelled Bid.

[16] Additionally, in approving the deviation, the National Treasury clearly laboured under the impression that a new bid was advertised on 17 January 2020, says the SIU, but SASSA would not advise the National Treasury of the fallacy. SASSA’s assertion that it did not mislead the National Treasury by deliberately opting not to correct the mistake of the date on which the Bid was advertised, should be rejected as unsound. It was also staggering that although the National Treasury had approved the deviation far earlier, on 31 January 2019, SASSA only sought cost estimations from the suppliers on 23 March 2020 and made the appointment in April 2020. The SIU concludes that this renders the objective for which the deviation was sought vain and, for that reason, urges this Tribunal to find that the decision to appoint Bendalo was irregular and unconstitutional.

[17] The SIU argues that following the cancellation of the Bid, it should have been advertised again and opened to all other potential bidders to ensure that it was fair, transparent, competitive and cost effective. The fact that SASSA only had regard to four suppliers flies in the face and purpose of section 217 of the Constitution. Besides, the amounts Bendalo charged SASSA were prohibitive. Having given the impression to the National Treasury that the Bid was advertised on 17 January 2020, SASSA only advertised it on 24 June 2020 and proffers no explanation for its unconscionable delay in the execution of the deviation it had sought. Given this, states the SIU, it is boggling why SASSA asked for an urgent deviation on 19 December 2019, yet it only obtained quotations from the suppliers in March 2020 and appointed them on 1 April 2020. The SIU argues that such a sluggish reaction to the supply of SRD food parcels that should have been immediate undermines the supposed urgency claimed by SASSA.

[18] The SIU states that Treasury Regulation 16A6.3 provides for the advertisement for a minimum period of 21 days before closure. Furthermore, the Regulation provides for advertisements for shorter periods within the discretion of the Accounting Officer. Consequently, SASSA could not have had any reasonable excuse because it failed to advertise the tender for the periods specified in Treasury Regulation 16A6.3. This raises the issue: why did SASSA require a departure from the procurement process to appoint Bendalo and Kwasa using quotation on 1 April 2020, despite having committed to advertise the tender on 17 January 2020? The SIU sees this as an attempt to avoid the normal tender process and this constitutes a material abuse of the deviation process.

[19] The Bid was also marred by a lack of cost effectiveness and transparency, argues the SIU. The determination and implementation of the minimum food parcel price by SASSA renders the procurement not cost-effective, transparent and not competitive as required in terms of section 217(1) of the Constitution. Ordinarily, SASSA would or should have ensured that Bendalo adhered to the provisions of section 217(1) to justify the appointment. This was not done. Additionally, the approved deviation did not permit SASSA to reduce the cost of the procured service by altering the amount per food parcel from R1 371.00 to R1 200.00.

[20] The appointment was unconstitutional for another reason, says the SIU. It was uncompetitive, uneconomical and inimical to the provisions of section 217(1) of the Constitution. The four suppliers were essentially guaranteed appointments because whichever amount each of them bid would be accepted.

[21] Bendalo relies on the two preliminary points, which I have undertaken to discuss later in this judgment. For now, it should suffice to state that Bendalo is persistent that the impugned decision is valid. Starting with the National Treasury allowing the deviation on the understanding that the Bid had been advertised on 17 January 2020. Bendalo asserts that the confusion was brought about by the letter from the National Treasury and the SIU, which uses the preposition “on” instead of “from”. In its application for the departure from the normal process, SASSA clearly states that it can only advertise “from” 17 January 2020 and not “on” 17 January 2020. As such, the deviation could not have been induced by the date of 17 January 2020, as SASSA never said so.

[22] Bendalo adds that in any event, it would have been unlawful for SASSA to advertise on 17 January 2020, as the National Treasury had not authorised the deviation. The permission only came on 31 January 2020. Moreover, argues Bendalo, the SIU does not disclose the importance of the date of 17 January 2020. Bendalo concludes by stating that the approval of the deviation on 31 January 2020 by the National Treasury is an acknowledgment that the matter was to be characterised as such.

[23] Bendalo contends further that the allegations pertaining to the non-delivery of substantial amounts of the goods are bald as they are not supported by any evidence from the SIU. Bendalo further takes issue with the statement by the SIU that SASSA had circumvented all accepted, known and lawful procedures to rush Bendalo through the back door because it is false. According to Bendalo, SASSA invited four suppliers through a quotation system following approval received from the National Treasury.

Issues

[24] The first issue to decide is whether the SIU had locus standi to launch this application. This is in two parts. Firstly, did the Proclamation allow the SIU to conduct the investigation for matters that emanated from occurrences prior to 1 January 2020 and secondly, was the investigation in terms of section 5(5) of the Special Investigating Units and Special Tribunals Act 74 of 1996 (“the SIU Act”)? Either one or the other of those two sub-issues may be dispositive of this matter, depending on the outcome.

[25] The second issue is whether the SIU has made a case for the review and setting aside of the impugned decision, which is for the supply of SRD reckoned from 1 April 2020 to 30 June 2020. The next matter is whether the decision to appoint Bendalo on 1 April 2020 as a successful bidder following a quotation bidding process and the subsequent contract concluded between Bendalo and SASSA is inconsistent with the Constitution, the PFMA, and the Treasury Regulations issued in terms thereof; and is accordingly unlawful, irregular, and invalid. Alternatively, whether the decision flies in the face of the principle of legality and/or common law and as such, is unlawful, invalid, of no force and effect, and void ab initio.

Legal Framework

[26] This review application is concerned with the procurement of goods and services by an organ of state, SASSA. As such, it will be advantageous to traverse the legislative provisions governing the procurement of goods and services in that area. The primary source of the law governing the procurement of goods and services in the public space is the Constitution. Section 1 of the Constitution is grounded on certain values, which include, amongst others, the supremacy of the Constitution and the rule of law. See, Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council.[1]

[27] The rule of law is a founding value of South Africa’s constitutional democracy, and all organs of state must operate within the law. This entails the actions of the Government being embedded in law and in line with the Constitution. See paragraph 29 of Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal.[2] The doctrine of legality also requires, at the very least, that the exercising of public power and functions conferred on an organ of state must be intra vires, exercised in good faith, and be rational in both purpose and process. The failure by organs of state to observe this contravenes the doctrine of legality. See paragraph 59 of Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council supra.

[28] Section 2 of the Constitution provides that the Constitution is the supreme law of the Republic, law or conduct inconsistent with it is invalid, and that the obligations imposed by it must be fulfilled. One of the primary provisions of the Constitution in the context of the issues raised in this application is section 217(1), which provides that: “When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts

for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.”

[29] Observance of the provisions of section 217(1) of the Constitution is absolute for it is the source from which an organ of state derives authority to procure goods and services. The law on procurement is prescriptive because the award of public tenders is notoriously prone to influence and manipulation.[3] It was held in Steenkamp NO v Provincial Tender Board, Eastern Cape[4] that the purpose of section 217(1) of the Constitution is to eliminate fraud and corruption in a procurement process. In Allpay Consolidated Investment Holdings v CEO, South African Social Security Agency and Others (No.1)[5] the Court confirmed that a supply chain management system within an organ of state needs to be consistent with the constitutional and legislative procurement framework. Accordingly, section 217(1) contemplates organs of state to contract in line with a system, which is fair, equitable, transparent, competitive, and cost-effective.

[30] Also significant in this matter are the provisions of section 195(1) of the Constitution, which provide as follows:

“(1) Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:

(a) A high standard of professional ethics must be promoted and maintained.

(b) Efficient, economic and effective use of resources must be promoted.

(c) Public administration must be development-oriented.

(d) Services must be provided impartially, fairly, equitably and without bias.

(e) People’s needs must be responded to, and the public must be encouraged to participate in policy-making.

(f) Public administration must be accountable.

(g) Transparency must be fostered by providing the public with timely, accessible and accurate information.

(h) Good human-resource management and career-development practices, to maximise human potential, must be cultivated.”

[31] The Preferential Procurement Policy Framework Act 5 of 2000 (“the PPPFA”) requires organs of state to implement a procurement policy by following a preference point system in respect of any “acceptable tender”. An “acceptable tender” in turn is defined in section 1 of the said Act as being “...any tender which, in all respects, complies with the specifications and conditions of tender as set out in the tender document.” Section 2 of the PPPFA states that an organ of state must determine its preferential procurement policy and implement it within a prescribed framework.

[32] Section 76(4)(c) of the PFMA empowers the National Treasury to issue instructions applicable to all institutions concerning inter alia the determination of a framework for an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective. Among the instructions issued by the National Treasury was SCM Instruction Note 3 of 2016/2017 (“Instruction Note 3”), whose objective is to provide guidance on measures to prevent and combat abuse in the Supply Chain Management System.

[33] Furthermore, it provides a framework for a procurement and provisioning system that is fair, equitable, transparent, competitive and cost-effective. It further requires that the Accounting Officer invite as many suppliers as possible and select the preferred supplier using the competitive bid committee system. A deviation ought not to be allowed where there is a self-created urgency brought about to manipulate the system.

[34] It was held in Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa,[6] that organs of state are not expected to conclude a procurement contract which is inconsistent with the applicable legislation, and they are also not expected to enforce procurement contracts which are concluded in breach of the applicable legislation. I now deem it appropriate at this stage to attend to the preliminary points that Bendalo raised. These are that the SIU lacks locus standi, and non-joinder.

Lack of Locus Standi of the SIU

[35] Bendalo contests the SIU’s claim that it derived its locus standi to launch this application from Proclamation No. R.23 of 2020 (“the Proclamation”) published in Government Gazette No. 43546 on 23 July 2020 and section 5(5) of the SIU Act. Essentially, Bendalo states that the investigation conducted by the SIU was not in terms of the Proclamation of 23 July 2020, nor are these proceedings in terms of section 5(5) of the SIU Act. I will discuss these two points in the order set out in this paragraph.

The Proclamation and the Schedule

[36] The relevant part of the Proclamation provides:

“… which took place between 1 January 2020 and the date of publication of this Proclamation or which took place prior to 1 January 2020 or after the date of publication of this Proclamation, but is relevant to, connected with, incidental or ancillary to the matters mentioned in the Schedule …”

[37] The Schedule stipulates that:

“The procurement of, or contracting for, goods, works and services, including the construction, refurbishment, leasing, occupation and use of immovable property, during, or in respect of the national state of disaster, as declared by Government Notice No. 313 of 15 March 2020, by or on behalf of the State institutions, and payments made in respect thereof in a manner that was …”

[38] Starting with the argument regarding the Proclamation. Here, Bendalo states that the mandate to investigate as provided by the President is limited. It does not stretch beyond 1 January 2020 to cover 14 June 2019. In terms of the Proclamation, the President authorised the SIU to investigate any alleged serious maladministration in connection with the affairs of the state institutions, improper or unlawful conduct by the state officials or employees of the state institutions which took place between 1 January and 23 July 2020 or prior to 1 January or after 23 July 2020.

[39] The authority of the SIU to investigate the matters, so continues the argument, is that they must be reduced to only those that are connected to, related to, incidental to, or ancillary to the Covid-19 National State of Disaster proclaimed in 2020. The SIU has acted outside of the directive of the President in that it had disregarded the fact that the quotation-based procurement strategy with reference number RFQ 342/19/GA (for the Eastern Cape region) (“the impugned contract”) was an interim measure for six months and incidental to the cancelled bid no. SASSA:08/19/EC (“the first bid”), which was first advertised on 14 June 2019.

[40] Bendalo concludes that because the impugned contract, which is connected to the cancelled first bid was first advertised on 14 June 2019, the SIU investigated a matter that was by eleven months outside of what the Proclamation had intended to encompass – it was eleven months prior to the declaration of the National State of Disaster. Bendalo believes that the impugned decision and the resultant contract are beyond the scope of the SIU mandate and in any event, the impugned decision is not incidental, related or connected to the Covid-19 National State of Disaster.

[41] The approach of Bendalo to the scope covered by the Proclamation is misguided. It is trite that when interpreting a document, a court ought to examine the language used, the context in which the language is used and the purpose intended to be accomplished. In this regard, I deem it necessary to refer to the matter of Capitec Bank Holdings Limited and Another v Coral Lagoon Investments.[7] I proceed to cite the paragraphs below:

“[25] Our analysis must commence with the provisions of the subscription agreement that have relevance for deciding whether Capitec Holdings’ consent was indeed required. The much-cited passages from Natal Joint Municipal Pension Fund v Endumeni Municipality (Endumeni) offer guidance as to how to approach the interpretation of the words used in a document. It is the language used, understood in the context in which it is used, and having regard to the purpose of the provision that constitutes the unitary exercise of interpretation. I would only add that the triad of text, context and purpose should not be used in a mechanical fashion. It is the relationship between the words used, the concepts expressed by those words and the place of the contested provision within the scheme of the agreement (or instrument) as a whole that constitutes the enterprise by recourse to which a coherent and salient interpretation is determined. As Endumeni emphasised, citing well-known cases, the inevitable point of departure is the language of the provision itself’.

[26] None of this would require repetition but for the fact that the judgment of the high court failed to make its point of departure the relevant provisions of the subscription agreement. Endumeni is not a charter for judicial constructs premised upon what a contract should be taken to mean from a vantage point that is not located in the text of what the parties in fact agreed. Nor does Endumeni license judicial interpretation that imports meanings into a contract so as to make it a better contract, or one that is ethically preferable.”

[42] The words “prior” and “after”, to which Bendalo attaches much weight simply mean those matters that came before 1 January 2020 or after 23 July 2020, respectively. That said, such matters must remain incidental or ancillary or connected to the National State of Disaster. Was SRD connected to the national state of disaster? The answer is, contrary to what Bendalo would have this Tribunal believe, in the affirmative. This is so because SASSA appointed Bendalo on 1 April 2020, following the declaration of the national state of disaster. As such, the distribution of the SRD food parcels occurred in the context of the National State of Disaster.

[43] Recently, in Special Investigating Unit v Kwasa Food Suppliers (Pty) and Others,[8] which is “on all fours” with this matter, Victor JP acknowledged that without profound examination, there appears to be a conflict between the language employed in the Proclamation and that used in the Schedule. On the one hand, the Proclamation provides that “which took place prior to 1 January 2020 or after the date of publication of this Proclamation, but is relevant to, connected with, incidental or ancillary to the matters mentioned in the Schedule.” In contrast, the Schedule lays down that “during, or in respect of the national state of disaster”.

[44] When confronted with this apparent tension, the Tribunal in Kwasa supra, stated that “it is necessary to apply the necessary cannons of interpretation. Is the Proclamation and the Schedule to be construed as a law? The Interpretation Act, 33 of 1957 defines ‘law’ as ‘any law, Proclamation, ordinance, Act of Parliament or other enactment having the force of law’. Accordingly, the Proclamation is a law which must be interpreted in accordance with its terms. The President’s Proclamation is clear in its terms. There is nothing within the Proclamation which suggests of an unconstitutional effect. The wording of the Proclamation and the Schedule when read together must be read in a harmonious way.”[9]

[45] Having comprehensively examined case authority on harmonious interpretation and that it must accord with the context and purpose, the Tribunal in Kwasa concluded that:

“[42] The respondents urged that the SRD does not relate to the National Disaster period at all – it was a pre-existing programme and had nothing to do with the National Disaster. The wording in paragraph (a) of the Proclamation is very wide. Whilst the schedule may be a bit more concise it still is rather equivocal. It differentiates by the use of the word or a difference between the national disaster or before, in that it has the word or during. Accordingly, if consideration is given to paragraph (a) of the Proclamation its reach is wide. It is not restricted to only the National Disaster period. By the use of the word or it introduces two alternatives. This in my view embraces the SRD programme albeit that the tender was awarded before the State of Disaster, the reviewable decision falls with the National Disaster period.”

[46] I have already stated that Kwasa and this matter are closely associated and I see no reason to depart from the views expressed and the approach adopted by this Tribunal in that matter. In short, while superficially it appears that there is discordance between the Proclamation and Schedule, it is clear that both of them came into being to purge the corruption and mischief that had pervaded measures that had been established to ameliorate the uncertainties brought about by the Covid-19 pandemic. An interpretation that seeks to subvert that harmonious reading of the two should therefore be rejected. The reading of the Proclamation and Schedule by Bendalo divorces the language employed from the context and purpose. It is for that reason that this Tribunal must not accept it.

[47] Other than that connection to the National State of Disaster, it must be borne in mind that if the SRD food parcels were not accorded the status that required continued immediate supply, there could have been disruptions brought about by the National State of Disaster. The National State of Disaster, it must be recalled, meant that it could not be “business as usual”; consequently the delivery of SRD food parcels received special attention to ensure that delivery was not interrupted.

[48] Although the initial application for deviation may not have been based on the exigencies and pressures caused by the National State of Disaster, its sudden incursion precipitated the adoption of urgent measures to ascertain the continued supply of the food parcels. This was precisely the motivation of SASSA when it sought to justify the appointment of Bendalo based on the quotation system.

[49] The objective of the memorandum of Ms D Dunkerley, the Executive Manager: Grants Administration, dated 24 March 2020, to all the Acting/Regional Executive Managers was to put it beyond doubt that SRD was brought under the umbrella of the National State of Disaster. The memorandum dealt with the provision of SRD food parcels amid the Covid-19 pandemic. Any argument to the contrary falls to be rejected because the connection or incidental nature of SRD to Covid-19 is manifest and requires no elaboration.

[50] Lastly, on this matter, I need to say something about paragraph 31 of the affidavit of the CEO of SASSA, Ms Busisiwe Memela-Khambule. She is correct that SASSA has a constitutional mandate to supply SRD food parcels and that such a mandate did not coincide with the advent of the National State of Disaster because it existed prior to the declaration. Bendalo would want to persuade this Tribunal to read her utterances as saying that SRD had nothing to do with the National State of Disaster. The reading of that statement in her affidavit does not lend itself to that interpretation, nor is it head-to-head with the views expressed by this Tribunal in the preceding paragraphs supra.

[51] The issue that the SIU investigation did not stem from section 5(5) of the SIU Act confronted this Tribunal in the matter of Special Investigating Unit v Minister of Correctional Services and Others.[10] As such, I do not intend to reinvent the wheel because the contentions that Bendalo has raised are on all fours with those that confronted Modiba J in that case. Responding to a similar argument, Modiba J stated the following:

“[25] The opposing respondents contend that the SIU lacks the requisite locus standi to institute review proceedings on behalf of the DCS and/or IDT. There is no merit to this contention. The SIU derives locus standi over this application from s 4(1)(c) read with s 5(5) of the SIU Act. These provisions empower the SIU to institute civil proceedings in its own name and/or on behalf of an organ of state and seek the relief that the organ of state is entitled to. The Tribunal in Kim Diamond interpreted this section to imply that in such a case, the defences that a respondent would have against an organ of state remain available to it as though that organ of state had instituted the proceedings itself.”

In the result, the point of law concerning locus standi is rejected as bereft of any merit.

Non-Joinder

[52] Bendalo states that the SIU disapproves of the decision of SASSA to award the contract to render services of SRD on 1 April 2020 to it. The basis of the criticism is the allegations of the SIU concerning the irregular procurement process. The SIU alleges that the reasons supplied for the deviation fail to meet all the requirements set out in the procurement policy of SASSA, the SRD Policy, and Treasury Regulation 16A6.4. SASSA agrees that it sought permission to deviate from the normal procurement processes on 19 December 2020 from the National Treasury. The latter responded positively by granting the application on 31 January 2020, albeit with a proviso that SASSA would submit a cost estimate for 6 months to the National Treasury for verification and that it would finalise the bidding process within the extension period.

[53] The basis on which Bendalo sought the deviation was that the food parcels had to be supplied immediately. As such, this constituted exceptional circumstances. However, having applied and been granted the deviation on 31 January 2020, SASSA only made the appointment on 1 April 2020, that way defying the logic of the urgency. The SIU calls this into question because the appointment does not accord with the urgency alleged in the application for deviation. Moreover, SASSA failed to alert the National Treasury that it had not advertised the Bid on 17 January 2020, thus suggesting that it deliberately wanted the National Treasury to labour under the impression that it needed the deviation immediately when it did not, if the date of the appointment of Bendalo, 1 April 2020, is anything to determine this.

[54] Bendalo now contends that the essence of this application by the SIU is tantamount to a backdoor review and setting aside of the decision of the National Treasury of 31 January 2020, granting the deviation to SASSA without a formal court review application. Bendalo states that it is manifest from the authority of Oudekraal Estate (Pty) Ltd v City of Cape Town[11] and MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd[12] that the decision of the National Treasury stands as valid and has legal consequences until set aside. The decision, says Bendalo,

cannot be rescinded or set aside without the National Treasury being part of these proceedings. Accordingly, concludes Bendalo, the SIU cannot succeed with this application until it has formally reviewed and set aside the decision of the National Treasury.

[55] The approach of Bendalo that the decision of the National Treasury granting permission to SASSA, whether unlawful in the circumstances or not, remains valid and with legal consequences until set aside, is a major obstacle to the case of the SIU. This Tribunal in the Kwasa matter supra[13] after a comprehensive scrutiny of Oudekraal and Kirland supra, concluded that:

“[52] Can the deviation be assessed in the absence of the National Treasury being a party to these proceedings or have its decision set aside in their absence. Our jurisprudence is clear that a decision remains valid until set aside. In the absence of a challenge to set aside the National Treasury’s decision it remains valid until set aside.”

[56] The non-joinder point in limine of Bendalo is, in these circumstances, well-founded. In light of the finding of this Tribunal on non-joinder, it will be unproductive to proceed to consider the other issues. In the result, the following order is appropriate:

1. The application is dismissed.

2. The SIU is liable for payment of the costs of Bendalo, including those of two Counsel, if applicable.

B A MASHILE

JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION, MBOMBELA

Appearances Counsel for the Applicant: Adv M Mphaga SC Adv MR Mokwala Instructed by: State Attorney Pretoria Counsel for the Respondent: Adv T Njokwana Instructed by: Mafani & Company Incorporated Date of Judgment: 10 July 2025

[1] Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others (1999) (1) SA 374 (CC).

[2] Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal [2013] ZACC 49; 2014 (5) SA 579 (CC) para 29.

[3] Minister of Social Development v Phoenix Cash and Carry [2007] 3 All SA 115 (SCA) para 1.

[4] Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC) paras 33 to 35.

[5] Allpay Consolidated Investment Holdings v CEO, South African Social Security Agency and Others (No.1) 2014 (1) SA 604 (CC).

[6] Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa 2015 (5) SA 245 (CC) para 75.

[7] Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) para 25 and 26.

[8] Special Investigating Unit v Kwasa Food Suppliers (Pty) and Others [2025] ZAST 3.

[9] Ibid para 33.

[10] Special Investigating Unit v Minister of Correctional Services and Others [2024] ZAST 7 para 25.

[11]Oudekraal Estate (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA).

[12] MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC).

[13] Special Investigating Unit v Kwasa Food Suppliers (Pty) and Others [2025] ZAST 3 para 52.