THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 544/2021

In the matter between:

MEC FOR THE DEPARTMENT OF PUBLIC
WORKS, EASTERN CAPE                                                           FIRST APPLICANT

MEC FOR THE DEPARTMENT OF HEALTH,
EASTERN CAPE                                                                 SECOND APPLICANT

and

IKAMVA ARCHITECTS CC                                                       RESPONDENT

Neutral citation: MEC for the Department of Public Works, Eastern Cape and
Another v Ikamva Architects CC (544/2021) [2022] ZASCA 184
(20 December 2022)
Coram:
VAN DER MERWE and GORVEN JJA and BASSON, WINDELL
and SALIE-HLOPHE AJJA
Heard:
21 November 2022

Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
11h00 on 20 December 2022.

Summary: Constitutional and administrative law – just and equitable order under
s 172(1)(b) of the Constitution – factors to be taken into account – default judgment
valid and binding – s 165(5) of the Constitution – enforceability of court orders –
order sought having effect of prohibiting execution of the default judgment – order
not just and equitable – application for leave to appeal dismissed.

__________________________________________________________________
ORDER
_____________________________________________________________________________________________
On appeal from: Eastern Cape Division of the High Court, Grahamstown (Beshe J
sitting as court of first instance):
The application for condonation is granted. The applicants are ordered to pay
the costs of that application, including those consequent on the employment of two
counsel, where so employed.
The application for leave to appeal is dismissed with costs, including those
consequent on the employment of two counsel, where so employed.

__________________________________________________________________
JUDGMENT
__________________________________________________________________
Gorven JA (Van Der Merwe JA and Basson, Windell and Salie-Hlophe AJJA
concurring)

[1] This is an application for leave to appeal a judgment of the Eastern Cape
Division of the High Court, Grahamstown (the high court), where Beshe J dismissed
an application with costs and refused leave to appeal. The matter before us was
referred for oral argument in terms of s 17(2)(d) of the Superior Courts Act 10 of
2013 (the Act). The parties were informed that, if called upon to do so, they should
be prepared to address this Court on the merits.

[2] As part of the order referring the matter for oral argument, the applicants were
directed to file five additional copies of the application for leave to appeal and to
comply with the rules of this Court by filing the record within three months of the
order. Both parties were directed to comply with all of the remaining rules relating
to the prosecution of an appeal. The applicants failed to comply with that direction
and sought condonation for that failure. Condonation was opposed. The failure
follows a litany of other procedural deviations by the applicants as will be seen in
due course. This more than justified the opposition. Despite the prospects of success
not having been evaluated as yet, it seems to me to be in the interests of justice to
grant condonation. Apart from other considerations, this matter raises a novel point
and cries out for finality. However, the applicants must bear the costs of that
application, including those of two counsel, where so employed.

[3] The grant of leave to appeal is governed by s 17(1)(a) of the Act, which reads:
‘(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion
that –
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration . . . .’
For present purposes, it is not necessary to enter the debate whether the test under
s 17(1)(a)(i) is more stringent than that under the Supreme Court Act 59 of 1959. It
should also be said that the application for leave was based squarely on that section
and not on s 17(1)(a)(ii).

[4] This matter stems from an application launched in September 2019 by the
applicants, the Member of the Executive Council for the Department of Public
Works, Eastern Cape (the Department of Works) and the Member of the Executive

Council for the Department of Health, Eastern Cape (the Department of Health). The
department directly involved in the contract mentioned below was the Department
of Works. The respondent herein, as in that matter, was Ikamva Architects CC
(Ikamva). The amended notice of motion sought the following relief from the high
court:
‘1. The decision of the Department of Public Works of 29 August 2002 to appoint Ikamva
Architects CC (the respondent) . . . is reviewed and set aside;
2.  The decision of the then Head of Department of the Department of Public Works of 3 September
2002 to contract with the respondent . . . is reviewed and set aside;
3. The contract concluded between the Department of Public Works and Ikamva Architects CC in
September 2003 . . . is declared void ab initio;
4. The respondent is entitled to no further payments under the contract referred to in paragraph 3
above and in terms of the default order of Malusi AJ on 1 December 2015 . . .;
5. Hearsay evidence contained in the founding and supplementary affidavits of Sabelo Mgujulwa
of 2 and 25 September 2019 respectively is hereby admitted into evidence in terms of section 3(c)
of the Law of Evidence Amendment Act, to the extent that it is necessary;
6. The respondent is ordered to pay the costs of the application, only in the event of its opposition.’
Although there was some debate concerning which of two contracts was targeted, it
was clearly the contract concluded between the Department of Works and Ikamva
in September 2003 and not 2002.

[5] In order to give perspective to this matter, it is necessary to deal in some detail
with the history of the litigation leading to this point. Suffice to say, it has travelled
a long and winding road. On 3 September 2003, the Department of Works offered
to appoint Ikamva ‘as Consulting Architects/Principal Agent’ for the project
described as ‘Frere Hospital (East London): Maintenance (Various): Masterplan,
Upgrade’. The appointment was accepted on 15 September 2003 (the contract). The
contract did not fare well. On 23 March 2007, the Department of Works appointed

Coega Development Corporation (Coega) as implementing agent for the Frere
Upgrade Project. Coega in turn appointed architects to do essentially the same work
as Ikamva had been appointed to do. Through a series of events, which need not be
detailed, an opinion was sought as to the legality of the appointment of Ikamva to
the contract. The Department was advised that the appointment contravened the
provisions of, inter alia, s 217 of the Constitution and the contract was accordingly
invalid. As a result, on 9 July 2007 the Department wrote to Ikamva. It indicated that
it had received legal advice and stated:
‘The procurement of the services of your firm was unlawful since, during the appointment process,
there was a failure to act in accordance with a system that is fair, equitable, transparent, competitive
and cost-effective, as required by the Provisions of the Constitution and the Preferential
Procurement Policy Framework Act, 2000, and the Regulations promulgated in terms thereof.
Since the aforesaid appointment of your firm is invalid, I advise that the Department will
henceforth not honour its obligations in terms of the aforesaid invalid appointment.’

[6] That letter caused Ikamva to accept the repudiation, to cancel the contract and,
on 7 August 2008, to sue the Departments for damages incurred as a result of the
cancellation. The action was defended and the Departments pleaded the invalidity
mentioned above. The Departments were called upon to make discovery of relevant
documents in terms of Uniform rule 35(1). When they failed to do so, Ikamva
applied for an order directing them to do so within ten days on pain of having their
defences struck out. They then discovered. On 12 October 2010, Ikamva delivered
a notice in terms of rule 35(3) requiring further and better discovery by way of
making additional listed documents available for inspection and copying. This notice
was ignored. On 26 September 2011, Ikamva applied for an order compelling
compliance with the rule 35(3) notice within a period of ten days, ‘failing which the
[Departments’] defence will be struck out and [Ikamva] will apply for judgment . . .

based on the same papers amplified if necessary’. On 10 November 2011, Majiki AJ
granted that relief unopposed. The Departments failed to comply with the order.

[7] On 7 November 2012, Ikamva applied for default judgment on notice to the
Departments. The matter came before Dukada J, who refused default judgment and
held that, despite the terms of the order, Ikamva had to apply to strike out the defence
prior to moving for default judgment. Ikamva appealed this order to the full court,
which set aside his order. Not only that, but the full court departed from the usual
custom and, presumably in the light of the past misguided efforts of the Departments,
gave guidance as to the way forward. It indicated that, even at that stage, the
Departments could avoid default judgment being granted by complying with the
order of Majiki AJ and applying to have their defences reinstated. This guidance
notwithstanding, the Departments neglected to do so. Instead, they launched an
application to reinstate their defence without having to comply but withdrew it on
the day of the hearing. On 1 December 2015, Ikamva applied for, and Malusi AJ
granted, default judgment for damages in the sum of R41 031 279.58.

[8] The Departments applied for leave to appeal. This was refused by Malusi AJ.
They then applied to rescind the default judgment. That application was dismissed
by Hartle J. Her dismissal was appealed to the full court, which refused the appeal.
Thereafter, this Court and, on 29 July 2019 the Constitutional Court, refused
applications by the Departments for leave to appeal the order of Hartle J. In their
founding papers, the Departments accepted that ‘the application for rescission has
been definitively disposed of’.

[9] It must be clearly stated at the outset that, during argument, any contention
that the default judgment was anything other than competent, valid and binding was

expressly abandoned. As such, this application for leave to appeal must be
determined on that basis and on that basis alone.

[10] The application under consideration was brought in the high court in
September 2019. An interim order led to a stay of execution of the default judgment
pending the determination of the relief referred to in paragraph 4 above. The interim
order was granted by consent, along with one declaring that the in duplum rule1
would not apply to interest on the judgment debt in order to ameliorate any prejudice
to Ikamva. Prayers 1 and 2 of the notice of motion sought to set aside the decisions
leading to the award of the contract to Ikamva. Since those orders would be ones
made under s172(1)(a) of the Constitution, the high court was urged to grant relief
under s 172(1)(b) in the form of orders in terms of prayers 3 and 4 thereof.

[11] The application was opposed by Ikamva on various grounds. Some of these
were:
a) The impugned decisions were not those which had led to the award of the contract
in question but to a prior one. This refers to the confusion as to whether the 2002 or
2003 contract was implicated.
b) The delay in bringing the self-review application should non-suit the
Departments.
c) Even if the impugned decisions did relate to the contract in question, the case was
not made out for them to be reviewed.
d) The issue of the validity of the contract was rendered res judicata by the default
judgment.
Beshe J dealt with these defences and based her decision on some of them.

1 This provides that interest must not exceed the capital sum.

[12] In the view I take of the matter, however, these defences need not be
determined. It is preferable to go to the heart of the relief sought by the Departments.
As mentioned, the object of the relief sought in prayers 1-3 of the notice of motion
was the relief under prayer 4. All of the relief flowed from the provisions of s 172(1)
of the Constitution. This reads:
‘(1) When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency; an
(b) may make any order that is just and equitable, including –
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions,
to allow the competent authority to correct the defect.’

[13] I will assume without deciding, for present purposes, that we would arrive at
the view that there are prospects that an appeal court would find that:
a) The impugned decisions were those which led to the contract on which the default
judgment was granted.
b) The delay in the self-review did not non-suit the Departments despite their not
having launched it since 2007 when they first became aware of the alleged invalidity.
c) The Departments had made out a case that the impugned decisions amounted to
‘conduct that is inconsistent with the Constitution’.
d) The decisions accordingly fell to be declared invalid as envisaged in s 172(1)(a)
and orders issued in terms of prayers 1 and 2 of the notice of motion.
e) The issue of the validity of the contract is not res judicata.
f) A declaration should be made that the contract was void ab initio.2

2 As was acknowledged by the Departments, such a declaration would be made as part of a just and equitable order
under s 172(1)(b).

[14] That brings into focus the sole remaining issue being the order sought in
prayer 4 of the notice of motion. Such an order would be based on the provisions of
s 172(1)(b), which empowers a court to make an order that is just and equitable.3 For
the application for leave to appeal to succeed, this Court must be ‘of the opinion that
. . . the appeal would have a reasonable prospect of success’. In other words that
there is a reasonable prospect that an appeal court would find that an order should
be granted that:
‘The respondent is entitled to no further payments under the contract referred to in [prayer] 3 above
and in terms of the default order of Malusi AJ on 1 December 2015.’
I now turn to this issue.

[15] Section 172(1)(b) flows from a declaration of invalidity under s 172(1)(a).
Unlike s 172(1)(a), which obliges a court to declare any legislation or conduct which
is incompatible with the Constitution invalid,4 s 172(1)(b) does not make it
mandatory for a court to make any order at all following such a declaration. If the
court exercises its discretion in favour of making such an order, the court may make
any order, so long as it is just and equitable. In Bengwenyama Minerals (Pty) Ltd
and Others v Genorah Resources (Pty) Ltd and Others, the Constitutional Court
held, as regards the approach to a just and equitable remedy under s 172(1)(b):
‘I do not think that it is wise to attempt to lay down inflexible rules in determining a just and
equitable remedy following upon a declaration of unlawful administrative action. The rule of law
must never be relinquished, but the circumstances of each case must be examined in order to

3 The inclusive relief referred to in s 172(1)(b)(i) and (ii) does not apply since there is no need for:
‘(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent
authority to correct the defect.’
In any event this is not what was prayed for and does not form a ground on which leave to appeal is sought.
4 Mazibuko NO v Sisulu and Others NNO [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) para
70.

determine whether factual certainty requires some amelioration of legality and, if so, to what
extent.’5
And in State Information Technology Agency SOC Limited v Gijima Holdings (Pty)
Limited, the Constitutional Court held:
‘. . . [U]nder section 172(1)(b) of the Constitution, a court deciding a constitutional matter has a
wide remedial power. It is empowered to make “any order that is just and equitable”. So wide is
that power that it is bounded only by considerations of justice and equity.’6

[16] As a preliminary step, it is necessary to interrogate what was requested by the
Departments in prayer 4. In argument before us, they conceded that there was no
danger that Ikamva would become entitled to any payments under the contract in the
future. This concession was well made since, on any version, the contract could no
longer found any relief. On Ikamva’s version, it was cancelled after its acceptance
of the repudiation by the Department of Works. It was this which animated the
default judgment. On the version of the Departments, and on the assumptions
referred to above, the Departments were entitled to have the contract declared null
and void ab initio. As such, there could be no basis for any order proscribing future
‘payments under the contract’.

[17] That leaves for consideration the refusal of the high court to grant an order
that, ‘[t]he respondent is entitled to no further payments . . . in terms of the default
order of Malusi AJ’. The Departments were transparent as to their objective in
seeking this order. As they said in reply, ‘the Departments are resisting payment by
way of self-review’. In sum, they sought to render the default judgment nugatory.

5 Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others [2010] ZACC 26; 2011 (4)
SA 113 (CC); 2011 (3) BCLR 229 (CC) para 85.
6 State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited [2017] ZACC 40; 2018 (2) SA
23 (CC); 2018 (2) BCLR 240 (CC) para 53.

[18] It bears mention that this was not an application for an order suspending
execution pending the outcome of proceedings to set aside the order. Such relief is
readily granted if cause is shown. The relief sought by the Departments is a final
order, which has the effect of permanently preventing execution by Ikamva of a valid
and binding judgment granted in its favour. On enquiry, the Departments accepted
this to be the case. They were unable to point to any direct authority where a court
has ordered that, in the face of a valid and binding court order, which was not
susceptible of being set aside, a judgment creditor should be prohibited from
executing on it. Nor could I find any.

[19] The contentions of the Departments fell essentially into two categories: First,
that courts have previously granted orders under s 172(1)(b) either for repayment of
moneys or prohibiting any further payments on invalid contracts. This, they
submitted, should apply equally to this matter. Secondly, that it is permissible under
s 172(1)(b) for a court to excuse payment of a valid and binding order of court which
is not subject to challenge.

Repayments, or a prohibition on future payments
[20] The submission of the Departments was that:
‘In some cases . . . the Courts unravel the financial consequences of the illegal contract even after
any payment under the impugned contract has been made, by ordering repayment.’
Reliance was placed on such ‘return-of-payment’ orders in the following matters:
a)
Mining Qualifications Authority v IFU Training Institute (Pty) Ltd.7 In this
matter the entity that had profited from an unlawful contract was directed to repay
the profits once these had been determined, along with interest.

7 Mining Qualifications Authority v IFU Training Institute (Pty) Ltd [2018] ZAGPJHC 455.

b)
Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd and
Others.8 There, Trillian was ordered to repay to Eskom the sum of R595 228 913.29,
together with interest.
c)
Corruption Watch (NPC) (RF) v Chief Executive Officer of the South African
Social Services and Others,9 where Cash Paymaster Services was ordered to repay
some R316 million to South African Social Security Agency along with interest and
costs. That order was confirmed on appeal by this Court.10

[21] The Departments argued that, since no payment had yet been made to Ikamva,
an order that it was not entitled to any payments would therefore be just and
equitable. It would suffer no financial hardship since it would not be ordered to repay
moneys. The glaring distinction between those matters and the present one, however,
is that in none of the others had a judgment been granted in favour of the other
contracting party. In a word, none of the matters relied upon above bears on the
present enquiry.

[22] The Department also sought to rely on the dictum in Buffalo City Metropolitan
Municipality v Asla Construction (Pty) Ltd,11 where the Constitutional Court held:
‘I therefore make an order declaring the Reeston contract invalid, but not setting it aside so as to
preserve the rights to that the respondent might have been entitled. It should be noted that such an
award preserves rights which have already accrued but does not permit a party to obtain further
rights under the invalid agreement.’

8 Eskom Holdings SOC Limited v McKinsey and Company Africa (Pty) Ltd and Others [2019] ZAGPPHC 185.
9 Corruption Watch (NPC) (RF) v Chief Executive Officer of the South African Social Services and Others [2018]
ZAGPPHC 7. The first respondent was, in fact, the Chief Executive Officer of the South African Social Security
Agency.
10 Cash Paymaster Services (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency and Others
[2019] ZASCA 131; [2019] 4 All SA 327 (SCA).
11 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (6) BCLR 661 (CC);
2019 (4) SA 331 (CC) para 105.

The Departments submitted that payment of the judgment debt to Ikamva would
have the effect that further rights would accrue to it under an invalid agreement. This
submission fails on at least two levels. Unlike in Buffalo City, as has been discussed
above and as conceded by the Departments, no further rights can accrue to Ikamva
under the contract. The right of Ikamva to execute arises from the judgment and not
the contract. In the second place, it is not a ‘further’ right since it accrued on the date
default judgment was granted. The crisp question is whether Ikamva should be
deprived of that right.

[23] The above discussion shows that none of the above cases provides support for
a just and equitable order which, in effect, overrides or renders nugatory an extant,
valid, and binding court order. Historic awards and the underlying reasoning relating
to repayments or prohibitions on future payments under contracts are clearly
distinguishable.

Permissible for a court to excuse payment of a valid and binding order of court?
[24] Here, the Departments set great store by the matter of Department of
Transport and Others v Tasima (Pty) Ltd.12 After a fixed term contract for a period
of five years in favour of Tasima had expired by effluxion of time, it was renewed
on a monthly basis. Thereafter, the Director-General purported to extend it for five
years to 30 April 2015. The extension was invalid. The department accordingly
stopped all payments. Tasima approached the high court and obtained an order that
the department should comply with its obligations under the extension ‘. . . pending
the finalisation of the dispute resolution proceedings . . . ’. In March 2015, Tasima
launched an urgent application seeking to hold the department and others in

12 Department of Transport and Others v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC); 2017 (1) BCLR
1 (CC).

contempt. This prompted a counter-application to review and set aside the extension
of the contract on the basis that it did not comply with s 217 of the Constitution13
and s 38 of the Public Finance Management Act 29 of 1999.

[25] The majority in the Constitutional Court found that even if such an order based
on the invalid extension of the contract was invalid, ‘. . . in light of section 165(5) of
the Constitution, the order is binding, irrespective of whether or not it is valid, until
set aside’14 and that, ‘[for] as long as the contract persisted, the High Court orders
had to be obeyed’.15 This was based on a finding that, at the time the interim order
on which the contempt proceedings were based was granted, the judge concerned
had the authority to grant such order. The Constitutional Court accordingly declined
to treat the order as null and void, instead holding that:
‘The interdict granted by Mabuse J only falls away once the counter-application is upheld by a
court. Until this point, it is binding and enforceable.’16
This means that, despite finding that the extension of the contract was invalid, a court
order premised on its validity remained effective until set aside.

[26] Tasima is clearly distinguishable. In the light of the admitted validity of the
default judgment in the present matter, it differs from a situation where the court
order could be regarded as invalid. It does not provide a basis for an order which

13 Section 217 of the Constitution provides:
‘(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.’
14 Tasima fn 16 above para 180.
15 Ibid para 185.
16 Ibid para 198. Emphasis in the original. References omitted.

would prevent Ikamva from executing pursuant to its default judgment. Tasima does
not assist the Departments. On the contrary, it underscores the importance of giving
effect to court orders.

[27] Turning, then, to broader considerations of the nature of court orders in our
law, s 165(5) of the Constitution is a useful point of departure:
‘An order or decision issued by a court binds all persons to whom and organs of state to which it
applies.’
This finds firm support in s 2 of the Constitution:
‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid,
and the obligations imposed by it must be fulfilled.’
It is clear that, if the Legislature promulgated a law which had the effect that an order
of court was not binding, that law would offend the principle of the separation of
powers17 and fall foul of s 165(5) of the Constitution. What then, of the effect of a
court order which does so?

[28] The only basis of which I am aware to prevent execution of a court order is if
it is set aside or abandoned. The first of these is in the power of a court and the
second in the party in whose favour the order was granted. There are limited
procedures available to set aside an order. This is for at least two reasons, as
indicated in Erasmus: Superior Court Practice.18 First, a court becomes functus
officio after pronouncing judgment19 such that, unless specifically empowered to do

17 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
SA, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) para 106, which referred to
Constitutional Principle VI dealing with the separation of powers and held that the Constitution complied with it:
‘There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and
balances to ensure accountability, responsiveness and openness.’
18 D E van Loggerenberg & E Bertelsmann Erasmus: Superior Court Practice 2 ed at D1-561f.
19 Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306F-G.

so, it may generally not amend or set aside a judgment.20 Secondly, public policy
requires finality in litigation.21 In Zondi v MEC, Traditional and Local Government
Affairs and Others, the Constitutional Court explained why this should be the case:
‘The parties must be assured that once an order of court has been made, it is final and they can
arrange their affairs in accordance with that order.’22
This was firmly underscored, particularly as regards the Constitutional Court, in
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector Including Organs of State and
others (Council for the Advancement of the South African Constitution and another
as amici curiae):
‘It is trite that orders of this Court are final and immune from appeal. They are, however,
rescindable, and the Legislature has carefully augmented the common-law grounds of relief by
expressly providing for narrow grounds of rescission by crafting rule 42. Narrow those grounds
are, for good reason, for the very notion of rescission of a court order constitutes the exception to
the ordinary rule that court orders, especially those of this Court, are final. By its nature the law of

20 Ibid. In Firestone, at 306H-307G, this Court recognised that, in limited circumstances, a court may revisit and amend
its judgment:
‘There are, however, a few exceptions to that rule which are mentioned in the old authorities and have been
authoritatively accepted by this Court. Thus, provided the court is approached within a reasonable time of its
pronouncing the judgment or order, it may correct, alter, or supplement it in one or more of the following cases:
(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for
example, costs or interest on the judgment debt, which the Court overlooked or inadvertently omitted to grant . . .
(ii) The Court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure,
ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter “the sense
and substance” of the judgment or order . . .
. . .
(iii) The Court may correct a clerical, arithmetical or other error in it judgment or order so as to give effect to its true
intention . . .
. . .
(iv) Where counsel has argued the merits and not the costs of a case (which nowadays often happens since the question
of costs may depend upon the ultimate decision on the merits), but the Court, in granting judgment, also makes an
order concerning the costs, it may thereafter correct, alter or supplement that order . . ..’
21 Zondi v MEC for Traditional and Local Government Affairs and Others 2006 (3) SA 1 (CC); 2006 (3) BCLR 423
(CC) para 27.
22 Ibid.

rescission invites a degree of legal uncertainty. So, to avoid chaos, the grounds upon which
rescission can be sought have been deliberately carved out by the Legislature.’23

[29] In the magistrates’ courts, setting aside a judgment or order can be achieved
by way of review, rescission or appeal. In the high court, it can only be done by way
of appeal or rescission. The power to amend or set aside orders on appeal is
specifically provided for in s 19(d) of the Act.24 The Uniform Rules of Court provide
for amendment and rescission of judgments25 as does the common law.

[30] There is a plethora of authority to the effect that s 165(5) lies at the heart of
the rule of law. In Pheko and Others v Ekurhuleni Metropolitan Municipality (2),
the Constitutional Court explained:
‘The rule of law, a foundational value of the Constitution, requires that the dignity and authority
of the courts be upheld. This is crucial, as the capacity of the courts to carry out their functions
depends upon it. As the Constitution commands, orders and decisions issued by a court bind all
persons to whom and organs of State to which they apply, and no person or organ of state may
interfere, in any manner, with the functioning of the courts. It follows from this that disobedience
towards court orders or decisions risks rendering our courts impotent and judicial authority a mere
mockery. The effectiveness of court orders or decisions is substantially determined by the
assurance that they will be enforced.

23 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud
in the Public Sector Including Organs of State and others (Council for the Advancement of the South African
Constitution and another as amici curiae) [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) para 82, citing with approval
Vilvanathan v Louw NO 2010 (5) SA 17 (WCC); [2011] 2 All SA 331 (WCC) at 28J-29C.
24 Section 19(d) provides:
‘The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to any power as may
specifically be provided for in any other law –
. . .
(d) confirm, amend or set aside the decision which is the subject of the appeal and render any decision which the
circumstances may require.’
25 Rules 31(2)(b) and 31(6) and Rule 42 deal with the amendment or rescission of judgments.

Courts have the power to ensure that their decisions or orders are complied with by all and sundry,
including organs of state. In doing so, courts are not only giving effect to the rights of the successful
litigant but also and more importantly, by acting as guardians of the Constitution, asserting their
authority in the public interest.’26
The novel question posed in the present matter is whether, when a court order is not
susceptible of being set aside by way of rescission or appeal, it can be held to be just
and equitable that another court can prohibit its enforcement.

[31] In Provincial Government North West and Another v Tsoga Developers CC
and Others,27 Constitutional Court, after referring to s 165(5) of the Constitution and
the need to give effect to court orders, held:
‘. . . [O]nce the order has been made, it is an order like any other. That means it can only be set
aside by means of a legally cognisable process like, for example, rescission.’28
This finds echo in the present matter. The only real distinction is that in the present
matter, rescission was refused rather than abandoned. And later, it was held:
‘Unless set aside by some competent legal process, at some point [the order] will have to be
complied with.’29

[32] Relief under s 172(1)(b) of the Constitution has ranged from keeping alive an
invalid contract for the public good30 to ordering repayment of ill-gotten profits
derived from such a contract, as seen above. What has not yet been ordered is that a

26 Pheko and Others v Ekurhuleni Metropolitan Municipality (2) [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6)
BCLR 711 (CC) paras 1 and 2.
27 Provincial Government North West and Another v Tsoga Developers CC and Others [2016] ZACC 9; 2016 (5)
BCLR 687 (CC).
28 Ibid para 52.
29 Ibid para 57. This followed a similar dictum in Bezuidenhout v Patensie Sitrus Beherend BPK 2001 (2) SA 224 (E)
at 229B-C, which found favour with this Court in Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Company Ltd and Others [2013] ZASCA 5; [2013] 2 All SA 251 (SCA) para 17.
30 Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social
Security Agency and Others (No 2) [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC).

valid and binding judgment may not be given effect. As was previously indicated,
Pheko (2) held:
‘The rule of law, a foundational value of the Constitution, requires that the dignity and authority
of the courts be upheld.
. . .
Courts have the power to ensure that their decisions or orders are complied with by all and sundry,
including organs of state. In doing so, courts are not only giving effect to the rights of the successful
litigant but also and more importantly, by acting as guardians of the Constitution, asserting their
authority in the public interest.’31
This recently received the stamp of approval in Secretary of the Judicial Commission
of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public
Sector including Organs of State v Zuma and Others, which, after referring to this
passage, went on to say:
‘Contempt of court proceedings exist to protect the rule of law and the authority of the judiciary.
As the applicant correctly avers, “the authority of courts and obedience of their orders – the very
foundation of a constitutional order founded on the rule of law – depends on public trust and
respect for the courts”’.32
It is thus no exaggeration to say that giving effect to court orders is an incident of
the rule of law. In Mjeni v Minister of Health and Welfare, Eastern Cape, Jafta J
said:
‘The constitutional right of access to courts would remain an illusion unless orders made by the
courts are capable of being enforced by those in whose favour such orders were made. The process
of adjudication and resolution of disputes in courts of law is not an end in itself but only a means
thereto; the end being the enforcement of rights or obligations defined in the court order.’33

31 Pheko (2) fn 32 above paras 1 and 2.
32 Secretary, Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public
Sector including Organs of State v Zuma [2021] ZACC 18; 2021 (5) SA 327 (CC); 2021 (9) BCLR 992 (CC) para 27.
33 Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (TkH) at 453C-D. Cited with approval in
Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another [2008] ZACC 8; 2008
(5) SA 94 (CC); 2008 (9) BCLR 865 (CC).

[33] The discussion thus far has shown that the cases where repayment or
prohibition of payment orders were granted do not provide authority that a court may
render nugatory an extant, valid, and binding court order. Likewise, no such
authority is found in the instruments that empower courts to set aside judgments by
way of rescission or appeal. The Constitution and rule of law establishes a strong
principle supporting the sanctity of valid and binding court orders and the right of
persons in whose favour they have issued to enforce them.

[34] All of this must inform the question whether it can ever be just and equitable
for a court to grant the kind of order sought in prayer 4 of the notice of motion. In
the light of the sanctity of court orders and the need to uphold the rule of law, the
public interest in finality, the Constitutional imperative that court orders must be
complied with, the lack of precedents in our law and the absence of specific powers
granted to courts to render a judgment nugatory in this fashion, it is my view that the
discretion under s 172(1)(b) does not extend to orders such as that sought by the
Departments in prayer 4. Such an order is not permissible.

[35] In prayer 4, the Departments attempted to enlist the assistance of the court in
their efforts to undermine ‘the dignity and authority of the courts’34 by rendering
nugatory a perfectly valid, binding, enforceable, extant judgment. In my view, this
can and should not be countenanced. I am fortified in this conclusion by what was
said in Bengwenyama to the effect that, in arriving at a just and equitable order under
s 172(1)(b) of the Constitution, ‘[t]he rule of law must never be relinquished . . . ’.35
It seems to me that the relief sought strikes at the very heart of the Constitution and

34 Pheko (2) fn 32 para 1.
35 Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others [2010] ZACC 26; 2011
(4) SA 113 (CC); 2011 (3) BCLR 229 (CC) para 85.

the rule of law. In these circumstances it cannot be just and equitable to grant prayer
4 of the notice of motion.

[36] All of this adds up to the conviction that, far from coming to the opinion that
the Department has prospects of success in persuading an appeal court that an order
should be issued in terms of prayer 4 of the notice of motion under the discretion
accorded by s 172(1)(b) of the Constitution, there are no such prospects.

[37] In the result:
The application for condonation is granted. The applicants are ordered to pay
the costs of that application, including those consequent on the employment of two
counsel, where so employed.
The application for leave to appeal is dismissed with costs, including those
consequent on the employment of two counsel, where so employed.

____________________
T R GORVEN
JUDGE OF APPEAL

Appearances

For applicants:
M A Albertus SC with S Sephton

State Attorney, East London

State Attorney, Bloemfontein

For respondent:
I J Smuts SC with A G Dugmore SC

Stirk Yazbek Attorneys, East London

Lovius Block Inc, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
20 December 2022
Status:
Immediate

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.

MEC for the Department of Public Works, Eastern Cape and Another v Ikamva
Architects CC [2022] ZASCA 184

Today the Supreme Court of Appeal dismissed an application for leave to appeal a
judgment of Beshe J in the Eastern Cape Division of the High Court, Grahamstown
(the high court). The application for leave was referred for oral argument and arose
from the dismissal by the high court of an application for the self-review by the
Department of Public Works (the Department of Works) of decisions to award, and
the consequent award of, a contract to Ikamva Architects CC (Ikamva) in 2003. The
contract related to work to be done on the Frere Hospital in the Eastern Cape. In
2007, the Department contracted Coega to oversee all work on Eastern Cape
hospitals. Coega, in turn, awarded a contract to another entity for similar work to that
which Ikamva had been contracted to perform. The Department of Works obtained
legal opinion to the effect that the award of the contract to Ikamva contravened s 217
of the Constitution. It then informed Ikamva that it did not intend to comply with its
contractual obligations. Ikamva accepted the repudiation, cancelled the contract,
and sued for damages. Although the action was defended, the Departments failed
to comply with a number of procedural steps.

This resulted in default judgment being granted by Malusi AJ in December 2015.
Leave to appeal was refused as was rescission. The refusal of rescission was
appealed to the full court, which dismissed the appeal. Applications for special leave
and for leave, to this Court and the Constitutional Court respectively, were
dismissed. In 2018, the Department of Works and the Department of Health
launched the application to self-review the decisions to award the contract to Ikamva
and to set aside the resultant contract.

The Supreme Court of Appeal assumed, without deciding, that there was a basis to
review and set aside the decisions in terms of s 172(1)(a) of the Constitution and to
set aside the contract. It considered whether there were prospects on appeal that
the high court ought to have granted an order under s 172(1)(b) of the Constitution
to the effect that Ikamva should be entitled to no further payments in terms of the
default judgment of Malusi AJ granted on 1 December 2015. The application was
argued on the basis that the default judgment was valid and binding and not
susceptible of challenge. Despite this, the Departments contended that such an
order should be granted, which meant that Ikamva would not be able to execute
pursuant to the default judgment. After reviewing the limited bases for setting aside
judgments, which did not apply since the Departments conceded there was no basis
for doing so, and the provisions of s165(5) of the Constitution which provides that an
‘order or decision issued by a court binds all persons to whom and organs of state
to which it applies’, the Supreme Court of Appeal held that such an order is
impermissible as offending the Constitution and the Rule of Law. For those reasons,
the application for leave to appeal was dismissed with costs.