THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 518 / 2008

MANONG & ASSOCIATES (PTY) LTD
Appellant

and

THE MINISTER OF PUBLIC WORKS
First Respondent
THE DIRECTOR GENERAL,
DEPARTMENT OF PUBLIC WORKS
Second Respondent
___________________________________________________________________

Neutral citation:
Manong v Minister of Public Works

(518/2008) [2009] ZASCA 110 (23 September 2009)

CORAM:

HARMS DP, BRAND, PONNAN, SNYDERS JJA and

BOSIELO AJA

HEARD:

4 SEPTEMBER 2009
DELIVERED:
23 SEPTEMBER 2009

SUMMARY: Practice – companies – litigation ─ whether obliged to act through
a legal representative. Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 - application for interim interdict to Equality Court
– failure to establish a prima facie case.

___________________________________________________________________

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:  The Equality Court, High Court, Transvaal Provincial Division
(Botha J sitting as a court of first instance).
The appeal is dismissed with costs, such costs to include those consequent upon the
employment of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

PONNAN JA (HARMS DP, BRAND, PONNAN, SNYDERS JJA and BOSIELO AJA
concurring):

Introduction

[1] State tenders have become fertile ground for litigation. The present is one
such matter. It commenced as what can only be described as a somewhat ambitious
application in terms of the Promotion of Equality and Prevention of Unfair
Discrimination Act No 4 of 2000 (the Equality Act) to the Equality Court (Transvaal
Provincial Division). In it, the appellant Manong and Associates Pty Ltd (the
company), which describes itself as a national company specialising in civil,
structural and development engineering, sought against the Minister of Public Works
and the Director-General, Department of Public Works (the first and second
respondents respectively), in addition to condonation and the usual order for costs,
the following relief,
'2.
Pending the determination of Part B of the relief sought by the complainant, an interim
interdict be granted preventing the first and second Respondents ("the respondents') from
implementing the Professional Services Supplier Register ("The Register") including its key
Principles.
3.
Ordering the respondents to furnish the complainant with the following information:
3.1
A record of the decision that was taken to abolish the current roster and its
replacement by the register.

3.2
A list of Civil engineering Consultants who are on the current roster of the Department
of Public Works ("the DPW") from the year 2005 to date;
3.3.
A schedule of fees showing appointments made to Consultants and the fees received
per project from the year 2005 to date.'
In Part B of the order prayed, the company sought the following relief:
'1.
Reviewing, correcting and setting aside the decision taken by the respondent to abolish the
current roster and its replacement by the register;
2.
Reviewing and setting aside the implementation of the register and declaring its key principles
to be inconsistent with sections 9 and 217 of the Constitution of the Republic of South Africa,
No. 108 of 1996 read with S.7 (c) and 7 (e) of the Promotion of Equality and Prevention of
Unfair Discrimination Act, No. 4 of 2000 ("the Equality Act");
3.
Reviewing the conduct of the respondents in appointing Consultants as it is inconsistent with
S. 217 of the Constitution;
4.
Directing the respondents to undergo an audit of their procurement policies . . ..’

[2] Botha J was called upon in the court below to adjudicate only Part A of the
relief sought. The learned judge dismissed the application for an interim interdict with
costs, but granted leave to the appellant to appeal to this court.

Right of Appearance

[3] Before turning to consider the merits of the appeal it is necessary to first
consider whether Mr Mongezi Stanley Manong (Mr Manong), the managing director
of the company, who signed the heads of argument on behalf of the company and
purported to represent it before us, has what can be described as a right of audience
on behalf of the company before this court.

[4] The rule that a company cannot conduct a case in this court except by the
appearance of counsel on its behalf was laid down in Yates Investments (Pty) Ltd v
Commissioner for Inland Revenue.1 The rule may well have originated in early
seventeenth century metaphysical reasoning that a corporation has ‘no soul, is
invisible and cannot do homage’.2 It, according to Viscount Simon LC, secures that a
court like this will be served by persons who observe the rules of their profession,

1 1956 (1) SA 364 (A).
2 Re G J Mannix Ltd [1984] 1 NZLR 309 at 311; Northern Homes Ltd v Steel-Space Industries Ltd
(1976) 57 DLR (3d) 309 at 313.

are subject to a disciplinary code and are familiar with the methods and scope of
advocacy to be employed in presenting argument.3

[5] There is nothing to suggest that Mr Manong's decision to secure the benefits
of incorporation was not a genuine one. He did after all have the option of
establishing and conducting the business as an unincorporated sole proprietorship.
There is thus a persuasive argument that having chosen the benefits of
incorporation, he must bear the corresponding burdens and not be allowed to
escape them lightly.4

[6] It has been thought,5 somewhat cynically I dare say, that the rule is based on
some misguided attempt to preserve an unjustified monopoly for legal practitioners.
This is not the case. Litigation is based on the adversary system. In determining a
dispute, a court is dependent on the way in which the case is presented. Factual
admissions or denials are made from time to time and a course of conduct has to be
chosen by the litigants. When a corporation instructs an attorney who in turn
instructs an advocate the law recognises their authority to bind the corporation for
the purpose of litigation. In those circumstances a court need not concern itself about
authority. Litigation will become very difficult indeed if a court had to be concerned at
every step of the proceedings as to the authority of the person conducting the
litigation to make binding decisions. The litigant in person can of course make those
decisions without any question of authority, but a corporation cannot act except
through its agent and an agent cannot have more authority than the corporation
legally gives to it.6 Yet a further consideration is that corporate officers could cause
impecunious companies to litigate hopeless causes without any fear of personal risk.
Thus, apart from the fact that there are usually rules of court that preclude a
company from being represented by anyone other than a qualified practitioner, a
review of the cases in England, Ireland, Australia, New Zealand and Canada shows
that the courts, for pragmatic and policy reasons, have set their face against

3 Tritonia Ltd and others v Equity and Law Life Assurance Society [1943] 2 All ER 401 (HL).
4 R v Rockwood (2008) 164 CRR (2d) 345 at para 10-11.
5 LCB Gower, JB Cronin, AJ Easson and Lord Wedderburn of Charlton Gower's Principles of Modern
Company Law (4ed (1979) p 212.
6 Harrison v Guardian Assurance Company Ltd [1989] 1 NZLR 59 at 60.

unqualified persons presenting and conducting cases unless they are doing so on
their own behalf.7 So too, in Zimbabwe8 and South Africa.

[7] That a person in the position of Mr Manong has no right, such as counsel and
in certain circumstances attorneys have, to address this court on behalf of the
appellant is thus well settled. But to observe that he does not have a right of
audience is not as Scott J put it 9 ' ... to answer the question whether the court does not have,
and whether the court should not on the facts of the case exercise, a power to permit him to address
the court on behalf of the corporate litigant.'

[8] Yates did not consider the question of a judicial discretion to allow non-
professional representation in a particular case. For, as Gardiner JP put it:
'The rules of procedure of this Court are devised for the purpose of administering justice and not of
hampering it, and where the rules are deficient I shall go as far as I can in granting orders which
would help to further the administration of justice ....’ 10
Likewise, Denning MR stated
'It is well settled that every court of justice has the power of regulating its own proceedings; and, in
doing so, to say whom it will hear as an advocate or representative of a party before it. As Parke J
said in Collier v Hicks ((1831) 2 B  & Ad 663 at 672, 109 ER 1290 at 1293): "No person has a right to
act as an advocate without the leave of the Court, which must of necessity have the power of
regulating its own proceedings in all cases when they are not already regulated by ancient usage".' 11

[9] The main reasons for relaxing the rule are, I suppose, obvious enough: a
person in the position of the controlling mind of a small corporate entity can be
expected to have as much knowledge of the company's business and financial
affairs as an individual would have of his own. It thus seems somewhat unrealistic
and illogical to allow a private person a right of audience in a superior court as a
party to proceedings, but deny it to him when he is the governing mind of a small
company which is in reality no more than his business alter ego. In those

7 The cases are usefully collected in California Spice and Marinade (Pty) Ltd and others in re:
Bankorp v California Spice and Marinade (Pty) Ltd and others; Fair O’ Rama Property Investments
CC and others; Tsaperas; andTtsaperas [1997] 4 All SA 317 (W).
8 Lees Import and Export (PVT) Ltd v Zimbabwe Banking Corporation Ltd 1999 (4) SA 1119 (ZSC).
9 Arbuthnot Leasing International Ltd v Havelet Leasing Ltd and others [1991] 1 All ER 591 (Ch) at
595.
10 Ncoweni v Bezuidenhout 1927 CPD 130.
11 Engineers' and Managers' Association v Advisory, Conciliation and Arbitration Service and another
(No 1) [1979] 3 All ER 223 (CA) at 225.

circumstances the principle that a company is a separate entity would suffer no
erosion if he were to be granted that right. There may also be the cost of litigation
which the director of a small company, as well acquainted with the facts as would be
the case if a party to the dispute personally, might wish to avoid. Such companies
are far removed from the images of gigantic industrial corporations which references
to company law may conjure up.12

[10] It follows that cases will arise where the administration of justice may require
some relaxation of the general rule.  Their occurrence, in my view, is likely to be rare
and their circumstances exceptional or at least unusual. I thus consider that our
superior courts have a residual discretion in a matter such as this arising from their
inherent power to regulate their own proceedings. After all it seems to me that the
power of a court to give leave to a corporation to carry on a proceeding otherwise
than by a legal representative is of necessity an integral part of the rule itself.

[11] That our courts were endowed with such power even in our pre-constitutional
era is evident from the following dictum of Corbett JA:
'There is no doubt the Supreme Court possesses an inherent reservoir of power to regulate its
procedures in the interests of the proper administration of justice ....'13
Courts now derive their power from the Constitution itself,14 which in section 173 of
provides:
'The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to
protect and regulate their own process, and to develop the common law, taking into account the
interests of justice.'
As it was put by the Constitutional Court in SABC Ltd v National Director of Public
Prosecutions and others:15
'This is an important provision which recognises both the power of Courts to protect and regulate their
own process as well as their power to develop the common law. . . .  The power recognised in s 173
is a key tool for Courts to ensure their own independence and impartiality. It recognises that Courts
have the inherent power to regulate and protect their own process. A primary purpose for the exercise
of that power must be to ensure that proceedings before Courts are fair. It is therefore fitting that the
only qualification on the exercise of that power contained in section 173 is that Courts in exercising
this power must take into account the interests of justice.'

12 Re G J Mannix Ltd at 315.
13 Universal City Studios Inc and others v Network Video (Pty) Ltd 1986 (2) SA 734 (A) at 754G.
14 Phillips and others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) para 47.
15 2007 (1) SA 523 (CC) para 35 and 36.

[12] According to the Constitutional Court:16
‘The task of an appeal Court in determining its own proceedings is an important one.  Its primary
constitutional responsibility is to ensure that the proceedings before it are fair and it must give content
to that obligation. This obligation has always been part of our law and is now constitutionally
enshrined as a fundamental right in s 35(3) of the Constitution. The task of ensuring that the
proceedings are fair will often require consideration of a range of principled and practical factors,
some of which may pull in different directions.’
But it did remind us that ‘it is a power which has to be exercised with caution’17 and
sparingly having taken into account the interests of justice in a manner consistent
with the Constitution.18

[13] It is important to emphasize that the power vested in the court in this regard is
a purely discretionary power. In general, and without attempting to lay down any
hard and fast rules, discretionary audience should be regarded as a reserve or
occasional expedient. For, whilst we must be free to review the Yates rule in the light
of currently prevailing conditions and requirements, we perhaps need to remind
ourselves that given the increasing complexity of litigation, the rule may well be
required as strongly today as it ever was. In those circumstances an unqualified and
inexperienced person may do more harm than good to the corporate litigant that he
purports to assist.

[14] I have expressly refrained from formulating a test for the exercise of the
court's inherent power as I believe that such cases can confidently be left to the good
sense of the judges concerned. Lest this be misconstrued as a tacit or general
licence to unqualified agents, it needs be emphasised that in each such instance
leave must be sought by way of a properly motivated, timeously lodged formal
application showing good cause why, in that particular case, the rule prohibiting non-
professional representation should be relaxed. Individual cases can thus be met by
the exercise of the discretion in the circumstances of that case. It would thus be
impermissible for a non-professional representative to take any step in the
proceedings, including the signing of pleadings, notices or heads of argument (as

16 SABC Ltd para 21.
17 S v Pennington and another 1997 (4) SA 1076 (CC).
18 Parbhoo and others v Getz NO and another 1997 (4) SA 1095 (CC).

occurred here), without the requisite leave of the court concerned first having been
sought and obtained.

[15]  This approach, in my view, is consistent with the right enshrined in s 34 of the
Constitution, which provides that everyone has the right to have any dispute that can
be resolved by the application of law decided in a fair public hearing before a court,
or, where appropriate, another independent and impartial tribunal or forum.
Emphasising that the courts have a duty to protect bona fide litigants and the
importance of untrammelled access to the courts, the right enshrined in s 34 has
variously been described by the Constitutional Court as ‘fundamental to a democratic
society that cherishes the rule of law’, ‘of cardinal importance that requires active
protection’, foundational for ‘the stability of an orderly society’, and a right that
‘ensures the peaceful, regulated and institutionalised mechanisms to resolve
disputes, without resorting to self help’ and serves as ‘a bulwark against vigilantism,
and the chaos and anarchy which it causes’.19

[16] Reverting to Mr Manong’s entitlement to represent the company before us.
The company, which was founded in 1995, has three directors with offices in four of
our major cities. It is described in the founding affidavit as having ‘evolved over the
years from a firm that initially specialised in development projects, …  to one ‘which
now specialises in more complex engineering projects such as the design of
runways and taxiways’. The company’s size (some 20 professionals), sophisticated
hierarchy and management structure, the scale of its operations and what it
describes as the many prestigious projects it has been involved in, are all testament
to the fact that, by no stretch of the imagination, can it be regarded as the alter ego
of Mr Stanley Manong. In those circumstances, one may well have hesitated to
permit him a right of audience on behalf of the company. What weighs against that
conclusion however is that only last term he appeared, without demur, before this
court on behalf of the company.20  Moreover, by the time that his entitlement to

19 Beinash and another v Ernst & Young and others 1999 (2) SA 116 (CC) para 17; Moise v Greater
Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening
(Women's Legal Centre as Amicus Curiae) 2001 (4) SA 491 (CC) para 23; Chief Lesapo v North West
Agricultural Bank and another 2000 (1) SA 409 (CC) para 22; First National Bank of South Arica Ltd v
Land and Agricultural Bank of South Africa and others; Sheard v Land and Agricultural Bank of South
Africa and another 2000 (3) SA 626 (CC) para 6.
20 Manong v Department of Roads & Transport, Eastern Cape Province [2009] ZASCA 59.

represent the company was queried by this court, he had already prepared and
signed the heads of argument on behalf of the company. In those circumstances
were he to have been debarred from representing the company, the matter would of
necessity have had to be postponed – occasioning delay and the incurring of
additional costs to both parties (all of which may not have been recoverable from the
losing litigant). We therefore allowed Mr Manong to represent the company before
us.

The Merits

[17] Section 217 of the Constitution reads:
'(1)
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.
(2)
Subsection (1) does not prevent the organs of state or institutions referred to in that
subsection from implementing a procurement policy providing for –

(a)
categories of preference in the allocation of contracts; and

(b)
the protection or advancement of persons, or categories of persons, disadvantaged

by unfair discrimination.
(3)
National legislation must prescribe a framework within which the policy referred to in
subsection (2) must be implemented.'

[18] To achieve that objective, the National Department of Public Works (DPW),
which has been described as the largest employer of consultants in the built
environment, operated a roster system for the procurement of professional service
providers for its projects. The aim of that policy, which was introduced in May 2001,
was to ensure a fairer distribution of work by targeting historically disadvantaged
firms and individuals and affording them preferential treatment through accelerated
appointments to departmental tenders. Thus firms and individuals with such
preferred status, through the operation of a prescribed formula, enjoyed a favourable
weighting on the roster. The net effect was that such firms and individuals came up
for allocation of fresh assignments quicker than those who did not enjoy such status.
They thus qualified for accelerated access to work opportunities by the DPW.

[19] The preamble to that policy recorded that the DPW

' ... will at intervals of approximately one year and in consultation with relevant professional bodies ...
assess the operation of the roster in order to determine whether it is achieving its objectives in a
satisfactory manner.'
And, if not
'... consideration will be given to modifying the system to remedy [its] shortcomings'.

[20] To that end and in contemplation of the introduction of a new policy to replace
the roster system, on 2 March 2008, the DPW through advertisements in national
newspapers invited consultants in the built environment to apply to be listed as
service providers on the DPW's proposed new professional services supplier
register.

[21] Disgruntled at the DPW’s decision to discard the roster system in favour of the
new register, Mr Manong dispatched a letter on 7 April 2008 in which he called upon
the Minister not to implement the new policy until in his words:
‘1.
adequate legal reasons are given why the current roster policy should be discarded;
2.
adequate legal reasons are given why the proposed new policy is more suitable to the
present needs of the DPW than the current one;
3.
adequate reasons both factual and legal that Black Consultants especially Affirmable Priority
Population Service Providers (APSP) will benefit more under the proposed new policy as
compared to the existing one;
4.
the widespread advertisement in national newspapers calling on all stakeholders to be given
sufficient time in order to make significant and meaningful input into the new draft policy.'
Mr Manong sought an assurance that the proposed new policy would not be
implemented, failing which an urgent application to the Equality Court would be
lodged. No assurance was forthcoming and a fortnight later the threatened
proceedings in the guise of the present application was launched on 7 April 2008.

[22] The requirements for the grant of an interim interdict are well settled.21 I will
limit myself solely to a consideration of the first - a prima facie right - as in my view
the application had to fail at that preliminary hurdle. It is thus unnecessary to range
beyond that to a consideration of the other requirements.

21 Setlogelo v Setlogelo 1914 AD 221 at 227.

[23] In the founding affidavit deposed to by Mr Manong in support of the
application, he sets out the background to the application as follows:
‘After examining the proposed key principles of the register found under paragraph 1.3 of the
said document ("STAN 34"), I came to the conclusion that the DPW was abrogating its
constitutional obligation of promoting the achievement of equality as enshrined under section
9 of the constitution.

…
The register will be used on a rotational basis for the invitation of quotations from at least the
top most three service providers.  The register does not state the different categories of the
service providers that are enlisted on the register as mandated by section 9 read with section
217 of the constitution. This is not just an oversight from the register, but a deliberate attempt
at maintaining and perpetuating the policies of the past within the civil engineering industry
through the denial of procurement opportunities to previously disadvantaged individuals.
…
He goes on to assert:
'Furthermore the quotation system suggested in the register is aimed at cementing this
racially exclusive practice by the denial of access to opportunities, including access to
services or contractual opportunities for rendering services to DPW by previously
disadvantaged individuals. Should the register principles be implemented, quotations from
African firms will be perpetually rejected on the basis that they are too high. The
implementation of the register principles will sound a death-knell to all African firms – few as
they are at the present moment.'
Mr Manong then suggests:
'It is the complainant's reasonable perception that the roster system was being manipulated to
benefit firms other than priority population firms. This perception is borne out by the fact the
DPW has flatly refused to make available the information requested under annexure "STAN
23".
This perception is further reinforced by the inexplicable conduct of the DPW of hurriedly and
unprocedurally discarding the current roster system and replacing it with a more corrupt-prone
quotation register. It is the perception of the complainant that the abolishment of the current
roster was aimed at appeasing the SAACE and other groups who are fiercely opposed to
Black Economic Empowerment.
The current roster is not abolished because of policy consideration it is abolished to enable
other groups and mainly white established firms to continue with their dominance of the civil
engineering industry. The roster policy was devised and implemented to assist historically
disadvantaged firms and to ensure a fair and equitable distribution of work to private sector
consultants.'

[24] That, in sum, constitutes the gist of the appellant's complaint about the
implementation of the DPW's register. Against that backdrop Mr Manong alleges:
'I believe that the Complainant has made out a case for the prima facie right for the reviewing of the
decision taken by the respondents in abolishing the current roster and its replacement by the register.
I also believe that the Complainant has made out an irrefutable prima facie case that the Key
principles of the Register are inconsistent with sections 9 and 217 of the constitution read with s.7(c)
and 7(e) of the Equality Act.'22

[25] Explaining what motivated the change in policy, Thapelo Samuel Motsoeng, a
chief director in the DPW, states:
The reason why the Roster had to be discarded was that the Roster did not comply with the
Public Finance Management Act 1 of 1999 (PFMA) and the Preferential Procurement Policy
Framework Act 5 of 2000 (PPPFA). In fact the Roster Policy was formulated before the
PPPFA Act was enacted and its regulations promulgated. The Roster therefore was not
conforming to the PPPFA in more than one sense, for example, the Roster did not
encompass provision for disabled persons, being one of the defined groups within the
PPPFA's definition of a Historically Disadvantaged Individual (HDI).
National Treasury together with the World Bank, launched the Country Procurement
Assessment review in 2001. The findings of this review resulted in the decision by Cabinet in
November 2003 to align South Africa's procurement with best international standards, which
includes the appointment of consultants, by means of a systematic competitive selection
procedure. Thus, the Department of Public works could no longer continue with the Roster in
the form it was structured as the principle on which it functioned allows for non-competitive
awards to be made up to the value of R2 million. It also did not afford preference to disabled
persons. Therefore the Roster system had to be discarded in order to have a system in line
with the PPPFA and more so one which approaches the procurement of professional services
on the basis of competitive bidding.'

[26] Mr Manong's further allegations elicited the following response from
Motsoeng:
'The Applicant fails to set out the basis for his conclusion that the DPW was abrogating its
constitutional obligation of promoting the achievement of equality under section 9 of the
Constitution. In fact such a conclusion as reached by the Applicant is denied. …

22 Those subsections read: Subject to section 6, no person may unfairly discriminate against any
person on the ground of race, including-
(c) the exclusion of persons of a particular race group under any rule or practice that appears
to be legitimate but which is actually aimed at maintaining exclusive control by a particular race group;
(e) the denial of access to opportunities, including access to services or contractual
opportunities for rendering services for consideration, or failing to take steps to reasonably
accommodate the needs of such persons.

The Applicant's perception that the Register is construed to be perpetuating unfair
discriminatory policies of the past is unfounded.
The acquisition of Professional Services in the built environment to perform services on behalf
of the National Director of Public Works had to be in line with the Preferential Procurement
Policy Framework Act 5 of 2000 ("PPPFA"), the Public Finance Management Act 1 of 1999
(PFMA), the Supply Chain Management Regulations and the Construction Industry
Development Board Act 38 of 2000.
The Professional Services Supplier Register is compliant with the above statues as opposed
to the Roster which was not.
The Register does not state the different categories of the service providers since in terms of
the PPPFA all service providers are allowed to tender but preference will be given to certain
categories. These categories are listed in section 2(1)(d)(i) of the PPPFA.
. . .
The Register also had to be compliant with the Treasury Regulations published under GN
R225 in GG 27388 of 15 March 2005 in promoting competitive bidding. Reference should be
had to Section 16A3.2 of the Treasury Regulations which provide that:
16A3.2 A supply chain management system referred to in paragraph 16A.3.1 must –
(a)
be fair, equitable, transparent, competitive and cost effective;
(b)
be consistent with the Preferential Procurement Policy Framework Act, 2000 (Act 5 of
2000);
(c)
be consistent with the Broad Based Black Empowerment Act 2003 (Act 53 of 2003);
(d)
. . ..’

[27] To succeed the company had to establish prima facie that the mere
implementation of the new policy by the DPW would in and of itself, of necessity,
have resulted in a discriminatory practice to the company and other similarly placed
historically disadvantaged firms and individuals. But that proposition in my view is
wholly untenable. Plainly, at this stage of the enquiry, the respondents’ explanation
that the roster system had to be discarded in favour of the new register to ensure
compliance with the relevant statutory framework was not and could not have been
gainsaid by the appellant.

[28] Expatiating on his assertion that the company’s allegations ‘are contradictory
and confusing’, Motsoeng states:
‘The Applicant makes out a case that the Roster system is a better system but at the same
time states that the Roster system was being manipulated to benefit firms other than priority
population firms. He then continues by stating that the Roster system was replaced by a more
corrupt-prone quotation register.

. . .
It is submitted that the Applicant fails to make out any case that his constitutional right to
equality under section 9 of the Constitution is being infringed in any way. He has further not
shown that the Register is inconsistent with section 9 and section 217 of the Constitution read
with section 7(c) and 7(e) of the Equality Act. His application is without any merit.'
With that, one can hardly disagree.

[29] Before us and although only raised somewhat obliquely on the papers, an
additional ground of review was sought to be advanced by Mr Manong, namely that
there had not been a proper consultative process prior to the introduction of the new
policy. That too, as emerges from the following excerpt from Motsoeng’s affidavit, is
devoid of any merit.
Furthermore, the DPW did have consultations with all relevant stakeholders. Such
consultations took place on 25 January 2006, 28 June 2006, 13 September 2006, 08
November 2006, 25 April 2007, 06 February 2008. I attach hereto a copy of the minutes of
such consultations attached hereto as Annexure "DPW 5 – DPW 10". Furthermore, a
conference was held in November 2007, to discuss the intended procurement route of the
Department as well as the fact that the Roster will be discarded in lieu of a new Register. The
following organizations were represented at the conference – South African Council for the
Architectural Profession, the South African council for the Quantity Surveying Profession, the
engineering Council of South Africa, the council for the Built Environment, SAIA, ASAQS,
SAACE and SABTACO. Present at all these consultations was Chief Director of Professional
Services, Mr Gerhard Damstra whose confirmatory affidavit is attached hereto as Annexure
"DPW13".

[30] I have quoted in extenso from the affidavits, because they illustrate, I do
believe, that if this were a horse race, the appellant has not yet made its way out of
the starting stalls. At best for the appellant, the hypothesis advanced by it is a rather
tentative and speculative one. The relief sought is not grounded in any factual
foundation but rather on conjecture, perception and supposition.  It followed that the
application had to fail and that the court below cannot be faulted in holding that the
appellant had failed to make out a prima facie case because the respondents’
answer cast serious doubt upon it (Webster v Mitchell 1948 (1) SA 1186 (W) at 1189;
Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son (Pty) Ltd 1995 (1) SA 725 (T) at
730B-D).

[31] In the result the appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.

_________________
V M  PONNAN
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

M S Manong (Appearing in  person)

Instructed by:

Manong & Associates

c/o MacRobert Inc

Pretoria

E G Cooper & Majiedt Inc

Bloemfontein

For Respondent:

R Tolmay SC

T Khatri

Instructed by:

The State Attorney

Pretoria

The State Attorney

Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

23 September 2009

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Manong v The Minister of Public Works
(518/2008) [2009] ZASCA 110 (23 September 2009)

Media Statement

Today the Supreme Court of Appeal (SCA) dismissed an appeal by Manong and Associates
(Pty) Ltd (the Company). The matter had commenced in the words of the SCA 'as a
somewhat ambitious application in terms of The Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (the Equality Act) to the Equality Court (Transvaal
Provincial Division)’.  In it, the Company, a national company specialising in civil, structural
and development engineering, sought against the Minister of Public Works and the Director
General, Department of Public Works an interim interdict preventing them from implementing
their Professional Services Supplier Register (the register) including its key principles.  The
application was dismissed with costs in the court below by Botha J.

The National Department of Public Works (the DPW), which has been described as the
largest employer of consultants in the built environment, operated a roster system for the
procurement of professional service providers for its projects. The aim of that policy, which
was introduced in May 2001, was to ensure a fairer distribution of work by targeting
historically disadvantaged firms and individuals and affording them preferential treatment
through accelerated appointments to departmental tenders. During March 2008, the DPW
sought to replace that policy with a new Professional Services Supplier Register (the register).
Disgruntled at the DPW's decision to discard the roster system in favour of the new register,
the Company launched an application for an interdict in the Equality Court.

In the view of the SCA, the Company had to fail at the first hurdle for the grant of an interdict –
namely a prima facie right. According to the SCA, in order to succeed the Company had to
establish prima facie that the mere implementation of the new policy by the DPW would in
and of itself have resulted in a discriminatory practice to the Company and other similarly
placed historically disadvantaged firms and individuals.  That proposition, according to the
SCA, was wholly untenable, because the DPW's explanation that the roster system had to be
discarded in favour of the new register to ensure compliance with the relevant statutory
framework was not and could not have been gainsaid by the Company.  It followed therefore
that the appeal had to fail and it was dismissed with costs.

In the course of doing so, the SCA was also called upon to first consider whether Mr Mongezi
Stanley Manong (Mr Manong), the managing director of the company, who had signed the
heads of argument on behalf of the company and who had purported to represent it before
the SCA, had what is described as a right of audience on behalf of the Company before it.
After considering the historical rationale for the rule that a company cannot conduct a case
before it except by the appearance of counsel on its behalf, the SCA concluded that cases will

arise where the administration of justice may require some relaxation of that general rule. It
accordingly held that superior courts have a residual discretion in a matter such as that,
arising from their inherent power to regulate their own proceedings. Such a discretionary
power was in the opinion of the SCA consistent with the Constitution. The SCA emphasised
that discretionary audience should be regarded as a reserve or occasional expedient, for,
given the increasing complexity of litigation, the rule may well be required as strongly today as
it ever was and furthermore there may well be circumstances when an unqualified and
inexperienced person may do more harm than good to the corporate litigant that he purports
to assist. The SCA refrained from formulating a test for the exercise of the Court's inherent
power as it believed that such cases could confidently be left to the good sense of the judges
concerned. It did however hold that it would be necessary in each such instance that leave
first be sought by way of a properly motivated, timeously lodged formal application showing
good cause why in that particular case the rule prohibiting non-professional representation
should be relaxed.

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