THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case no: 99/2019

In the matter between:

MILLENNIUM WASTE MANAGEMENT (PTY) LTD                            APPELLANT

and

SOL PLAATJE MUNICIPALITY

RESPONDENT

Neutral citation:
Millennium Waste Management (Pty) Ltd v Sol Plaatje
Municipality (Case No 99/2019) [2021] ZASCA 35 (7 April 2021)

Coram:
PONNAN, MOCUMIE, MAKGOKA and DLODLO JJA and
LEDWABA AJA

Heard:
11 March 2021
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by email. It has been published on the website of the Supreme
Court of Appeal and released to SAFLII. The date and time for hand-down is deemed
to be 10h00 on 7 April March 2021.

Summary: Contract – unenforceable agreement to agree. Special leave – requires
something more than reasonable prospects of success on appeal – court hearing
appeal decides whether special circumstances exist – no special circumstances found
– appeal struck from the roll with costs.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Northern Cape Division of the High Court, Kimberley (Pakati ADJP,
Mamosebo J and Stanton AJ sitting as court of appeal):
The appeal is struck from the roll with costs.

JUDGMENT
___________________________________________________________________

Dlodlo JA (Ponnan, Mocumie and Makgoka JJA and Ledwaba AJA concurring):

[1] In January 2006, the respondent, the Sol Plaatje Municipality (the Municipality)
issued an ‘invitation for proposals (the invitation) for the operation of the Kimberley &
Ritchie Waste Disposal Site (the site)’. In response to the invitation, on 20 February
2006, the appellant, Millennium Waste Management (Pty) Ltd (Millennium Waste),
submitted a written tender to the Municipality, which was judged ‘responsive’.

[2] On 25 July 2007, the Municipal Manager of the Municipality wrote to Millennium
Waste:
‘RE: INVITATION FOR PROPOSAL FOR THE OPERATION OF THE KIMBERLEY AND
RITCHIE WASTE DISPOSAL SITES
I have a pleasure in advising you that your offer submitted in response to the abovementioned
tender has been accepted.
Council’s representative for this work will be in contact with you shortly to finalise logistical
arrangements for the execution of this contract.’

[3] According to Millennium Waste, it took possession of the site on 1 October
2007, and thereafter rendered services, for which it invoiced the Municipality. When
the Municipality declined to pay, it caused summons to be issued against the
Municipality out of the Northern Cape Division of the High Court, Kimberley. The claim
failed before Lever AJ, who absolved the Municipality from the instance. The learned
judge ordered Millennium Waste to pay the costs of the action. An appeal to the full

court, likewise failed. The full court (per Pakati ADJP (Mamosebo J and Stanton AJ
concurring)) dismissed the appeal with costs. The further appeal by Millennium Waste
is with the special leave of this court. In this regard it is important to emphasise that
what is required is some additional factor or criterion.1 The fact that leave to appeal
has been granted upon application to the President of this court is not decisive of that
enquiry. It remains for this court upon a consideration of the appeal to make that
determination.

[4] The issue for determination is whether, as alleged by Millennium Waste, the
payments were due to it under a contract, which had come into being when it was
advised by the Municipal Manager of the Municipality that its tender had been
accepted. However, the mere notification that its tender had been accepted, did not,
without more, result in a contract.  As the letter of 25 July 2007 made plain
‘arrangements for the execution of [the] contract’ still needed to be finalised.

[5] That accords as well with what had been contemplated by the invitation. The
invitation did not contemplate, without more, a contract coming into being upon the
mere determination by the Municipality that a particular tender was responsive and the
intimation by the Municipality that a particular tender had been accepted. Clause 3.12
of the invitation made that clear. It provided:
‘3.12 Finalisation of the contract
• Discussion to reach agreement on all points and sign contract shall be held at the following
address:
Sol Plaatje Municipality
First floor, Old Mutual Building (Civic Centre Building)
Corner Jan Smuts Boulevard & Lundhurst Street
Kimberley
• Discussion will include the content of the proposal, the proposed work plan, budget staffing
and any suggestions made by the firm to improve the Required Services. The council and the
firm will then work out an agreed final Terms of References and staffing. The agreed work
plan and final Terms of Reference will then be incorporated into the “Required/Description of
Services” and form part of the contract.

1 Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) at
561E-F.

• Discussion of finances will be confined to accommodate any agreed technical modifications
and their impact on the cost of services. Unless there are exceptional reasons, discussions
will involve neither the remuneration rates for staff (no breakdown of fees) nor other proposed
unit rates. In no event will the final cost of services exceed the original budget.
• Consultants should, in their proposals, provide assurances that the experts named will be
available. The Sol Plaatje Municipality expects to conclude a contract on the basis that the
experts named on the Proposal are available. Due to the urgent of the nature of the work
required the Sol Plaatje Municipality will not consider sub situations during contract finalisation.
If it is established that key staff were offered in the Proposal without confirming their
availability, the firm may be disqualified.
• The discussions will conclude with a review of the draft form of the contract. The Sol Plaatje
Municipality and the firm should then initial the agreed contract. If the parties fail to reach an
agreement, the Sol Plaatje Municipality will invite the firm that received the second highest
score to enter into discussion.’

[6] Indeed, paragraph 5 of Millennium Waste’s particulars of claim alleged:
‘It was an express term of the tender that discussion will take place between the parties
regarding the content of the proposal, the proposed work plan, budget staffing and any
suggestions made by plaintiff to improve the required services, discussions will take place
regarding finances, discussions will conclude with a review of the draft form of the contract
and the contract will be awarded following the discussions with the successful tenderer.’

[7] Clause 3.12 thus envisaged: further discussions; agreement on all points; and
the signing in due course of a contract. It is common cause that none of that happened.
In the circumstances, as Millennium Waste’s claim rests on an unenforceable
agreement to agree,2 it had to fail.

[8] Both before the full court and before us, counsel for Millennium Waste sought
to circumvent the provisions of clause 3.12 by suggesting that those provisions did not
apply to Millennium Waste. This, according to counsel, was because Millennium
Waste tendered only for the ‘Operations’ portion of the contract. According to him
clause 3.12 applied only to the ‘Technical’ portion of the contract.  There is no merit in

2 See inter alia Premier, Free State and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA);
Southernport Developments (Pty) Ltd v Transnet Ltd  2005 (2) SA 202 (SCA); [2005] 2 All SA 16 (SCA);
Shepherd Real Estate Investments (Pty) Ltd v Roux Le Roux Motors CC [2019] ZASCA 178; 2020 (2)
SA 419 (SCA) and Sontsele v 140 Main Street Properties CC and Another [2020] ZASCA 85.

this submission. As the full court correctly pointed out, the tender document was one
composite document and had to be read as such. In any event, this submission is in
conflict with Millennium Waste’s pleaded case as set out above.

[9] It is necessary to add that although interpretation is a matter for the court, not
for witnesses,3 the parties generated a record in excess of 1500 pages, all of which
was irrelevant to the issue on which the case turned.

[10] There is no merit in the appeal to this court.  As it was put in Stu Davidson
and Sons (Pty) Ltd v Eastern Cape Motors (Pty) Ltd [2018] ZASCA 26 paras 18 and
19:
‘ . . . That two judges of this court gave special leave to appeal does not mean that we are not
required to consider whether we actually should be entertaining the appeal at all: National
Union of Mineworkers v Samancor Ltd [2011] ZASCA 74 para 15.  The normal criterion of
reasonable prospects of success applies to both ‘special leave’ and ‘leave’ (Westinghouse at
561E-F). Given that there is no merit at all in the appeal, there are no reasonable prospects
of success, much less special circumstances.
Here, the amount in issue is minimal. There is no legal question to be determined. There is no
factual dispute that requires reconsideration. There is no reason why an appellate court should
determine any matter arising from the first appeal further. Again, it is trite that where there has
been no manifest denial of justice, no important issue of law to be determined, and the matter
is not of special significance to the parties, and certainly not of any importance to the public
generally, special leave should not be granted. (See Westinghouse above and National Union
of Metalworkers of South Africa & others v Fry’s Metals (Pty) Ltd [2005] ZASCA 39).’

[11] The appeal is accordingly struck from the roll with costs.

______________
DV Dlodlo
Judge of Appeal

3 KPMG Chartered Accountants (SA) v Securefin Limited and Another [2009] ZASCA 7; 2009 (4) SA
399 (SCA); [2009] 2 All SA 523 (SCA).

APPEARANCES:

For appellant:

A P Bruwer
Instructed by:

Du Plessis De Heus & Van Wyk, Kimberley

Symington & De Kok Attorneys, Bloemfontein

For respondent:

B Knoetze SC (with him A G Van Tonder)
Instructed by:

Van De Wall Incorporated, Kimberley

Phatshoane Henney Attorneys, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal
DATE

7 April 2021
STATUS

Immediate

Millennium Waste Management (Pty) Ltd v Sol Plaatje Municipality (Case No. 99/2019) [2021] ZASCA
35 (7 April 2021)
_________________________________________________________________________
Please note that the media summary is intended for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Today the Supreme Court of Appeal (the SCA) struck the appeal from the roll.

In January 2006, the respondent, the Sol Plaatje Municipality (the Municipality) issued an invitation for
proposals for the operation of the Kimberley & Ritchie Waste Disposal Site (the site). In response to the
invitation, on 20 February 2006, the appellant, Millennium Waste Management (Pty) Ltd (Millennium
Waste), submitted a written tender to the Municipality, which was judged responsive. When the
Municipality declined to pay, it caused summons to be issued against the Municipality out of the
Northern Cape Division of the High Court, Kimberley. The claim failed before Lever AJ, who absolved
the Municipality from the instance. An appeal to the full court, likewise failed

The issue before the SCA was whether the payments were due to Millenium Waste under a contract.

On appeal, the SCA held that it was necessary to add that although interpretation was a matter for the
court, not for witnesses, the parties generated a record in excess of 1500 pages, all of which was
irrelevant to the issue on which the case turned; and for this reason the appeal had no merit and fell to
be struck from the roll.