THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 487/2021

In the matter between:

SIYANGENA TECHNOLOGIES (PTY) LTD
APPELLANT

and

PASSENGER RAIL AGENCY
OF SOUTH AFRICA
FIRST RESPONDENT

RETIRED JUSTICE EZRA GOLDSTEIN
SECOND RESPONDENT

RETIRED JUSTICE MEYER JOFFE
THIRD RESPONDENT

#UNITEBEHIND
AMICUS CURIAE

Neutral citation:
Siyangena Technologies (Pty) Ltd v PRASA and Others
(487/2021) [2022] ZASCA 149 (1 November 2022)
Coram:
PONNAN, VAN DER MERWE and PLASKET JJA and CHETTY
and SALIE-HLOPE AJJA
Heard:

26 August 2022

Delivered:

1 November 2022
Summary:
Constitutional and administrative law
– irregularities in
procurement process by organ of state – legality review – self-review – delay – whether
unreasonable and should be condoned – just and equitable remedy following
declaration of unconstitutionality of contracts – factors relevant to assessment –
misconduct by state officials – contracting parties not innocent – remedial discretion –
independent engineer appointed to assess value of work – order may be interfered
with on appeal only if discretion not exercised judicially – defective record – absence
of core bundle – costs.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Lamont, Raulinga and
Hughes JJ, sitting as court of first instance):

The appeal is dismissed with costs, including the costs of two counsel.
The appellant’s attorneys shall not be entitled to recover any of the costs
associated with the preparation, perusal or copying of the record.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Chetty AJA (Ponnan, Van der Merwe and Plasket JJA and Salie-Hlope AJA
concurring):

Introduction
[1] This appeal is against the judgment of the Gauteng Division of the High Court,
Pretoria (the high court), which set aside certain procurement contracts entered into
between the appellant, Siyangena Technologies (Pty) Ltd (Siyangena) and the first
respondent, the Passenger Rail Agency of South Africa (PRASA). Siyangena was
appointed by PRASA to supply and maintain an integrated security access
management system (ISAMS) at various train stations. The equipment – which
included public address facilities, speed gates and electronic display boards – was
intended to enhance the safety, access and efficiency of the public rail commuter
system, which PRASA is under a statutory duty to provide and maintain.1

1 PRASA was established in terms of s 22 of the Legal Succession to the South African Transport
Services Act 9 of 1989. Its statutory mandate is to provide, inter alia, commuter rail services in the public
interest throughout the Republic and is funded by the National Treasury through allocations made to
the Department of Transport.

[2] The high court found that in contracting for these goods and services with
Siyangena, PRASA, as an organ of state, failed to act in a manner that is ‘fair,
equitable, transparent, competitive and cost effective’ in accordance with the
provisions of s 217 of the Constitution. The high court declared the award of the
contracts to the value of approximately R5.5 billion invalid, and set them aside in terms
of s 172(1)(a) of the Constitution. The high court further directed, as part of its remedial
powers in terms of s 172(1)(b) of the Constitution, that an independent engineer be
appointed in order to determine whether any of the payments made to Siyangena by
PRASA should be set off against the value of the works done. It is principally this latter
conclusion that occupies our attention in this appeal, which is with the leave of the
court below.

Grounds of appeal
[3] On appeal Siyangena appeared to accept that on the strength of State
Information Technology Agency SOC Ltd v Gijima2 (Gijima) and Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Ltd3 (Buffalo City) the contracts fall
to be declared constitutionally invalid. However, it takes issue with the remedial order.
It contends that it is inconsistent with the Constitutional Court’s approach to a just and
equitable remedy because, so it claims, it was in the position of an innocent party. As
a result, it ought not to be stripped of any rights it would have been entitled to under
the contract, but for the declaration of invalidity.

[4] Importantly, in its written argument before this Court, Siyangena conceded that
it could not contest the high court’s ‘numerous findings that PRASA had failed to
comply with the requirements of the procurement processes in respect of the three
contracts at issue in these proceedings’. Rather, the position adopted by Siyangena
is that at all times it had no knowledge of the internal workings of PRASA and was an
‘innocent’ contracting party; there was thus no basis to infer that it was complicit in the
malfeasance.

2 State Information Technology Agency SOC Ltd v Gijima [2017] ZACC 40; 2018 (2) BCLR 240 (CC).
3 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (6) BCLR
661 (CC).

Background facts
[5] PRASA approached the high court in March 2018 to have its own decisions to
conclude the procurement contracts with Siyangena reviewed and set aside.4 The
election by PRASA to set aside its own decisions was taken by the reconstituted Board
of Control of PRASA (the Board), which was appointed in August 2014. Prior to this,
the executive management committee fell under the control of the erstwhile Group
Chief Executive Officer (GCEO), Mr Montana, who resigned under a cloud in July 2015
amidst mounting concern of mismanagement, as well as an ongoing investigation by
the Public Protector into maladministration at PRASA.

[6] The facts surrounding the irregularities, to the extent that they implicate
PRASA’s own officials, are extensively canvassed in the founding affidavit of Ms
Ngoye, the Group Executive: Legal, Risk and Compliance at PRASA and corroborated
by supporting documentation and affidavits. The high court made extensive reference
to these facts in its judgment,5 and no purpose would be served  in restating those
here. The stance adopted by the appellant is that it does not challenge those findings,
as it was not privy to the internal workings of PRASA.

Irregular contracts
[7] In preparation for the 2010 FIFA World Cup, a decision was taken by PRASA
to initiate a pilot project to upgrade certain stations. However, due to budgetary
constraints, not every station was to be upgraded.

[8] Mr van der Walt was the Head of Strategic Asset Development (SAD) at
PRASA. Mr Gantsho was the general manager in the unit which was responsible for
infrastructure development. Mr Gantsho, without the knowledge of Mr van der Walt,
but after liaising with Mr Montana, authorised the extension of the pilot project to other
‘2010’ stations, with Siyangena as the contracting party.

4 The legal challenge to the procurement contracts has a lengthy history more fully canvassed in the
high court judgment. PRASA launched an earlier review application on 2 February 2016 to set aside
the contracts. On 3 May 2017, Sutherland J dismissed the application on the basis that PRASA had not
sought condonation for the delay in bringing the application in terms of s 9(1) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). An application for leave to appeal and subsequent
application to the SCA were dismissed. Thereafter, the Constitutional Court handed down judgment in
Gijima, paving the way for the present application as a legality review.
5 See paras 43-104.

[9] The haste with which this contract was concluded is evident from a proposal
submitted by Mr Ferreira, the Chief Executive Officer (CEO) of Siyangena, on 17
March 2010 for the installation of Speedstile gates and closed circuit television (CCTV)
surveillance cameras (forming part of an integrated security system) at seven sites for
the amount of R90.9 million. Siyangena requested an appointment letter within two
days from the date of its proposal. The proposal was met with some concern by Mr
Sebola, the Senior Manager: Projects, on the issue of the funding and ownership of
the installations. His concerns were overlooked. Similar concerns were echoed by the
Supply Chain Management department that the proposal be placed before the Board
and that the issue of funding be resolved. These concerns were also brushed aside.
On 30 April 2010, Siyangena was appointed as the contractor for an amount of R61.8
million, exclusive of VAT, in terms of a letter of appointment, although no formal
contract could be located. It bears noting that the motivation submitted to the Chairman
of the Board for approval of the contract deleted any reference to Mr Montana as being
one of the persons who was instrumental in driving this project. Instead, the motivation
referred to Mr Gantsho alone.

[10] The high court recorded that this contract was concluded following private
meetings held between Siyangena and officials of PRASA. A meeting took place
between Mr Ferreira and Mr Kgaudi in November 2009 where they discussed the work
to be carried out in respect of the 2010 FIFA World Cup stations. Mr Kgaudi was a
consultant engineer acting on behalf of PRASA with regard to the supply and
installation of the ISAMS. The identification of Siyangena as a suitable entity to take
over the role as the service provider on the ISAMS project appears, even on the
version of Siyangena, to have been more than fortuitous. Both Mr Gantsho and Mr
Montana were present at the meeting in January 2010 when Siyangena was
mentioned to assist with the ISAMS roll-out. Mr Gantsho was then instructed to contact
Siyangena, after which, as the high court found, at least two meetings were held
between Mr Ferreira and Mr Montana, in private. There is no record of what was
discussed at these meetings. Ultimately, Mr Gantsho, in liaison with Mr Montana, and
to the exclusion of Mr van der Walt and those in supply chain management, motivated
for the appointment of Siyangena.

[11] The high court further noted that in Siyangena’s answering affidavit it is
recorded that Mr Montana met with Mr Ferreira on 17 March 2010 at the former’s
office, where discussions were held as to Siyangena’s ability to meet the proposed
deadline for delivery. There is no record of this meeting either. What is not disputed is
that, on the same day, Mr Gantsho received the abovementioned proposal from
Siyangena for an extension of the pilot project at a contract price of R90.9 million.

[12] The high court found that, despite the absence of a budget to fund the roll-out
of the ISAMS programme, and without having carried out any procurement process or
prior needs assessment as to whether the installation would be fit for purpose, PRASA
proceeded to contract with Siyangena on the pretext that it would not be able to secure
an alternative contractor to take over in time from Siemens (the previous contractor)
before the commencement of the 2010 FIFA World Cup. It was found that internal
documents were manipulated in an attempt to justify and conceal a prior commitment,
which had been made to Siyangena, to the exclusion of other contractors.

[13] The high court proceeded to analyse the circumstances leading to the
conclusion of ‘Phase 1’ of the impugned contracts, which entailed the roll-out of the
ISAMS programme to sixty-two stations throughout the country. Siyangena was
allowed to piggyback on its original contract with PRASA, and in this way, allowed to
by-pass any vetting under the procurement system. The 2010 FIFA World Cup
provided the impetus for stations designated as ‘World Cup Stations’ to be
modernised, the intention being to reduce fare evasion and to cater for the anticipated
volumes of commuters during the tournament. However, no needs analysis or end-
user assessment, planning or budgetary exercise was carried out before embarking
on the next phase of the installations. This must be seen against the backdrop of a
contract price of R1.9 billion, where the costs under the pilot project of R2.5 million per
station ballooned under the extended roll-out to approximately R12.4 million per
station, and then to R31.5 million. Correspondence between Mr Gantsho and
Siyangena suggests that the latter were left to design the specifications and the bill of
quantities, so much so that the contract in Phase 1 resembles that of an unsolicited
bid.

[14] Moreover, PRASA as an entity falling under the control of the Department of
Transport and the responsible Minister, was bound by further regulatory policy.
Provision for such a large expenditure (defined in the National Treasury Guidelines as
a ‘mega project’6) would have had to feature in the Medium Term Expenditure
Framework (MTEF) for 2010/2011. No allocation was made for such expenditure. As
the high court found, there was no authorisation from the Minister for a contract of
such magnitude.

[15] The high court found that the key protagonists in paying little or scant regard
for PRASA’s internal systems of checks and balances, and of the numerous
committees created for the very purpose of ensuring efficiency and transparency in
procurement, were Mr Montana, Mr Gantsho and Mr Mbatha, the Chief Procurement
Officer (CPO). As the GCEO, Mr Montana simply ignored procedures, by-passed
committees and manipulated documents to favour an outcome to the advantage of
Siyangena. When the tender documents did find their way to the Board for approval,
the minutes which served before the Board concealed irregularities and contained
misrepresentations.

[16] It is inconceivable that the Board could have approved a contract for
approximately R1.3 billion in circumstances where its national budget for the
installation of speed gates was R317 million. The Board members, who considered
the approval of the contract, did not have the necessary expertise to evaluate the bid,
but nonetheless awarded the contract to Siyangena on the basis that it ‘met all our
technical requirements’.

[17] Even more startling is that Siyangena tendered for the contract at a price of
R1.1 billion with the Board inexplicably approving the award of the contract at a price
of R1.9 billion including VAT. This situation is exacerbated by an up-front payment by
PRASA of R250 million as a ‘deposit’ to enable Siyangena to ‘purchase equipment’,
without even knowing what equipment it intended to purchase.

6 National Treasury, Capital Planning Guidelines, June 2018 defines a ‘mega project’ as those
estimated to cost more than R400 million per year for a minimum of three years, or a total project cost
of at least R1 billion. Most mega projects will customarily require a pre-feasibility study and a
comprehensive feasibility study for scrutiny by National Treasury.

[18] The Joint Buildings Contract Committee (JBCC) agreement followed upon a
process riddled with irregularities. The high court found that the works and quantities
in the agreement had not been identified; the principal agent appointed had no skills
to satisfy the requirements of the position. In short, the high court described the
conclusion of the JBCC agreement as irrational and unreasonable. None of these
shortcomings and irregularities are gainsaid by Siyangena.

[19] A further example of Siyangena being the beneficiary of ‘extensions’ to existing
contracts, without having to compete in an open and fair procurement process, is
evident from a motivation addressed by Mr Mbatha to Mr Montana for approval of
CCTV cameras at the cost of R97.7 million. The proposal was motivated on the basis
of an urgent need to address spiralling theft and vandalism at the Wolmerton and
Braamfontein staging yards. No formal needs analysis or budgetary considerations
were evident in the request. A recurring theme used to justify the award of various
contracts to Siyangena was on the basis of emergency situations or that an existing
service provider was unable to meet the proposed deadline.

[20] The implementation of ‘Phase 2’ of the roll-out of the ISAMS project was carried
out in much the same manner as Phase 1. This phase encompassed 160 stations
throughout the country and commenced with a proposal from Siyangena of R2.5
billion. Again, a competitive bidding process was jettisoned. The contract was
considered in circumstances where the MTEF for 2013/14 only made provision for
R235 million for work of this nature, nor was there approval from the Department of
Transport or National Treasury in respect of a ‘mega project’.

[21] PRASA attempted to give the process a veneer of compliance with the
procurement guidelines. However, in June 2013, when a Request for Proposal was
issued to various service providers, contrary to its SCM guidelines, PRASA specified
the use of a specific brand of equipment in respect of access control, CCTV and speed
gate installation. This was directed at favouring Siyangena over the other bids, as the
brand of equipment specified was supplied almost exclusively by Siyangena.

[22] Despite various concerns having been raised, Mr Montana ultimately
recommended the approval of Siyangena as the successful bidder in circumstances
where there was no approval by the Board. A letter of appointment was issued by Mr
Mbatha on 17 June 2014 at a contract value of R2.5 billion. As in Phase 1, a JBCC
agreement was concluded on 30 June 2014, which was plagued by the same
shortcomings as its predecessor.

[23] A further contract between PRASA and Siyangena was concluded in
September 2014 for work to upgrade the equipment installed under Phase 1 and for
the maintenance and warranty of equipment installed in Phase 2. The proposal for the
work was initiated by Siyangena and it was the only entity considered, and thereafter
engaged. As with other contracts between the parties, there was no adherence to any
procurement protocols, no budget analysis, no Board approval and no consideration
of the proposal by any of PRASA’s committees, including the Corporate Tender
Procurement Committee (CTPC). In this instance, the contract was steam-rolled by
the Group Chief Procurement Officer, Mr Phungla, together with Mr Montana, at a
price of R794 million.

Hearsay evidence and the exclusion of affidavits of ‘intervening witnesses’
[24] Siyangena contended that it was seriously hamstrung in demonstrating that it
was innocent of the alleged malfeasance because the high court had wrongly decided
to disregard affidavits made by certain witnesses. Those witnesses came to depose
to affidavits in the following manner: The review application was set down by special
allocation on 5-8 March 2019, the Judge President of the Division having decided to
constitute a court of three judges to hear the matter (the first court) (which, save for
one judge, was differently constituted to the one that eventually heard the matter).7
Prior to the hearing, counsel were informed in chambers that the court had decided
that the matter would not proceed, as the court was concerned that current and former
employees of PRASA, who were implicated in alleged wrongdoing, had not been
granted any opportunity to respond to the allegations made against them or to
participate in the review proceedings as ‘witnesses’ or as parties. The first court
consequently ordered that those specifically named employees or members of

7 Per Mothle, Hughes and Van der Westhuizen JJ.

PRASA’s board were entitled to intervene as witnesses and deliver affidavits in their
defence of their alleged wrongdoing.

[25] This was done mero motu absent an application by any of the ‘intervening
witnesses’ or the parties themselves. It is unclear where the court derived the power
that it purported to exercise. There is certainly no provision in the Uniform Rules for
Court for the intervention of a witness in an application. In any event, PRASA was not
seeking relief against any of those identified as witnesses. The relief sought by PRASA
was confined to the setting aside of the JBCC agreements, the contracts concluded
with Siyangena and orders setting aside the arbitration agreements. None of those
‘intervening witnesses’ had any direct and substantial interest in the relief sought by
PRASA.

[26] In my view, the order permitting witness affidavits to be filed ought not to have
been granted in the first place. Support for this conclusion is to be found in National
Director of Public Prosecutions v Zuma,8 where this Court considered an application
by the former President, Mr Mbeki, and the Government of South Africa to intervene
in appeal proceedings concerning a decision by the high court which found the
existence of a political conspiracy to prosecute the former Deputy President, Mr Zuma.
To that end, the high court made several conclusions implicating Mr Mbeki, which
reflected negatively on him and the Government. Mr Mbeki sought to intervene in this
Court to ‘set the record straight’. The application was dismissed with Harms JA saying
the following:9
‘Nevertheless, to be able to intervene in proceedings a party must have a direct and
substantial interest in the outcome of the litigation, whether in the court of first instance or on
appeal. The basic problem with the application is that the applicants have no interest in the
order but only in the reasoning. They are in the position of a witness whose evidence has been
rejected or on whose demeanour an unfavourable finding has been expressed. Such a person

8 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 84.
See Energy Fund SOC Ltd and Another v Venus Rays Trade (Pty) Ltd and Others [2020] ZAWCHC
164, where Rogers J dismissed an application by an individual implicated in certain impugned
transactions who sought to intervene in the proceedings to file an affidavit, presumably to exculpate
himself. The Court reasoned:
‘To the extent that my findings reflect adversely on Gamede, they have been reached without regard to
the evidence he wanted to adduce. If Gamede feels that a public statement setting out his side of the
story is necessary to protect his reputation, my judgment will be no bar to his doing so.”
9 Paragraph 85.

has no ready remedy, especially not by means of intervention. To be able to intervene in an
appeal, which is by its nature directed at a wrong order and not at incorrect reasoning, an
applicant must have an interest in the order under appeal. The applicants do not have such
an interest.’ (My emphasis.)

[27] The high court ruled ‘the affidavits inadmissible as evidence in these
proceedings’. Although the reasoning of the court in arriving at that conclusion can
rightly be said to be open to criticism, the conclusion itself cannot be faulted. The order
of the first court was open to reconsideration by the court seized with the review
application. The order by the first court granting leave to witnesses to intervene is
unprecedented. Unsurprisingly, there is no support for it in the rules of court or our
substantive law. The first court lacked the power to issue such an order, which was to
all intents and purposes a nullity.10 The court below was thus entitled to disregard the
affidavits produced in terms of that order on the basis that they were inadmissible.

Delay
[28] The high court had careful regard to PRASA’s explanation for the delay, viewed
in the context of the widespread corruption that appeared to permeate those sections
of PRASA concerned with the procurement of services related to the integrated access
management control system. The high court found that the previous management of
PRASA, under the ‘tyrannical’ control of its erstwhile GCEO, Mr Montana, placed
obstacles in the path of the newly constituted Board to unearth the true state of affairs,
by frustrating the flow of information. The new Board was constituted in August 2014.
Mr Montana remained in his position until his resignation in July 2015, in which time
steps were taken to conceal the irregular and unlawful conduct. These features too
were echoed in Swifambo Rail Leasing (Pty) Ltd v Passenger Rail Agency of South
Africa (Swifambo).11

[29] In order to unearth the true extent of the mismanagement, the new Board
appointed a team of forensic investigators. The investigators were required to trawl

10 Master of the High Court Northern Gauteng High Court, Pretoria v Motala N O and Others [2011]
ZASCA 238; 2012 (3) SA 325 (SCA).
11 Swifambo Rail Leasing (Pty) Ltd v Passenger Rail Agency of South Africa [2018] ZASCA 167; 2020
(1) SA 76 (SCA) para 34.

through countless emails and computer databases, amidst deliberate efforts to
conceal the malfeasance within PRASA.

[30] It is in this context that PRASA contends that once the true reasons for the
impugned decisions were known to the reconstituted Board, it acted without delay and
within a reasonable time in bringing this application. To the extent that there was any
delay (which the high court determined to be approximately 10 months), PRASA
provided an explanation. In essence, as the high court held:
‘The reconstituted board required time to . . . ascertain the nature and extent of the irregular
activities and expenditure. What made the board's work even more difficult, is that, as a result
of the victimization they suffered, certain members of the applicant's board resigned.’

[31] The high court, relying on Buffalo City, exercised its judicial discretion and
granted condonation for the delay of 10 months, taking into account the nature of the
impugned decision; the conduct of PRASA; and prejudice to the public purse. It said
that Siyangena’s complaint of prejudice could be ameliorated in the form of an
appropriate remedy.12 It was not contended in this Court that the high court exercised
its discretion on wrong principles or misdirected itself in any way.

[32] This Court in Swifambo condoned a delay of three years in circumstances
similar to those in this matter, where the Board was kept ignorant of the full extent of
the wrongdoing at PRASA.13 Swifambo and the present matter relate to procurement
during the tenure of Mr Montana, in the face of corrupt dealings with service providers.
Swifambo confirmed that the overriding consideration in condoning delay is the
interests of justice, as well as the public interest. In this regard, the high court held that
almost R5.5 billion of taxpayer’s money had been spent on equipment which was not
fit for purpose. As the Constitutional Court pointed out in City of Cape Town v Aurecon
South Africa (Pty) Ltd:14

12 Khumalo and Another v Member of the Executive Council for Education: KwaZulu-Natal [2013] ZACC
49; 2014 (5) SA 579 (CC); 2014 (3) BCLR 333 (CC) paras 53 and 56. See also Buffalo City para 54.
13 Swifambo para 36.
14 City of Cape Town v Aurecon South Africa (Pty) Ltd [2017] ZACC 5; 2017 (6) BCLR 730 (CC).

‘. . . If the irregularities raised in the report had unearthed manifestations of corruption,
collusion or fraud in the tender process, this Court might look less askance in condoning the
delay. The interests of clean governance would require judicial intervention.’15

[33] I can find no ground to interfere with the high court’s decision to condone the
delay of 10 months. This period of delay was not unreasonable in the circumstances.
PRASA acted expeditiously once the true reasons for the impugned decisions came
to light. In the context of a litany of breaches of the procurement system, condonation
had to be granted in the interests of justice.

Corruption
[34] As this Court held in Millennium Waste Management (Pty) Ltd v Chairperson,
Tender Board: Limpopo Province and Others,16 where there is evidence of corruption,
an order declaring the contracts unconstitutional ought to follow. The factual findings
by the high court, summarised above, display a concerted effort on behalf of officials
within PRASA to debase almost all aspects of the procurement process, to the benefit
of Siyangena. Their conduct spanned breaching the supply chain guidelines by not
having the scope of work designed and evaluated by the Cross Functional Sourcing
Committee (CFSC) and the introduction of brand specification into the Request for
Proposals, in circumstances where Siyangena would have had ‘priority’ access or
availability to such items by virtue of their proximity to the suppliers.

[35] It was also apparent that Siyangena was on occasion, without resort to a
bidding process, introduced as the contractor that would be able to deliver on a
particular project, based primarily on it being an existing contractor. The appointments
were made without the necessary vetting process. In other instances, specifications
were proposed by Siyangena rather than PRASA. When officials within the
procurement structure raised concerns about source and price, their concerns were
dismissed. The high court inferred an ‘existence of corruption . . . from the fact that a

15 Aurecon para 50.
16 Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province and Others
[2007] ZASCA 165; [2008] 2 All SA 145; 2008 (2) SA 481 (SCA) para 26: ‘There is no suggestion that
the consortium was complicit in some way in bringing about the conclusion of the tender - had that been
shown it would have been appropriate to set the decision aside for that reason alone - and it must be
accepted that it is an innocent party’.

multitude of irregularities exist’ and the ‘absence of a candid explanation from the
tenderer’.

[36] That remains the only plausible inference on a conspectus of all of
uncontroverted evidence. I am satisfied that the high court was ineluctably driven to
conclude that Siyangena was complicit, alternatively involved in the corruption in
relation to the impugned contracts.17 Nothing which has been placed before us
warrants disturbing that finding. I therefore concur with the high court’s inference of
complicity in the corruption on the part of Siyangena.

Remedy
[37] In the high court and in this Court, PRASA accepted that some of the work of
Siyangena was of value to it. Thus, despite the view that Siyangena was not the
innocent contractor it proclaimed to be, the high court devised a remedy it deemed to
be fair to both parties, and directed that an independent engineer be appointed to
value the works purportedly carried out by Siyangena at the various train stations and
other facilities belonging to PRASA.

[38] The high court further considered that the independent engineer would take into
account amounts already paid under the contracts to Siyangena and in the event that
it is determined that Siyangena has been underpaid, PRASA would be obliged to make
good on the shortfall. Conversely, if it is determined that Siyangena has been overpaid
in relation to the value of the work done, then it would be liable to recompense PRASA.

[39] Gijima informs us that the powers of a court granting relief in terms of s
172(1)(b) of the Constitution are so wide that ‘it is bounded only by considerations of
justice and equity’.18 In this Court, counsel for Siyangena placed much emphasis on

17 In AllPay Consolidated Investment Holding (Pty) Ltd v Chief Executive Officer South African Social
Security Agency (Corruption Watch and Centre for Child Law as Amici Curiae) [2013] ZACC 42; 2014
(1) SA 604 (CC) (AllPay), it was held at para 27: ‘. . . deviations from fair process may themselves all
too often be symptoms of corruption or malfeasance in the process. In other words, an unfair process
may betoken a deliberately skewed process. Hence insistence on compliance with process formalities
has a three-fold purpose: (a) it ensures fairness to participants in the bid process; (b) it enhances the
likelihood of efficiency and optimality in the outcome; and (c) it serves as a guardian against a process
skewed by corrupt influences’.
18 Gijima para 53.

evidence that PRASA insisted that Siyangena continue to perform work in terms of the
contracts, even at the time when the former was taking steps to review and set aside
the contracts. Counsel for Siyangena contended that the company continued to
provide its services as PRASA continued to demand performance. There is a dispute
in this regard, as Siyangena itself obtained an interdict preventing PRASA from taking
steps to bar it from various sites. That notwithstanding, it is not in dispute that PRASA
ceased payment to Siyangena in May 2016 on the contracts in question.

[40] It is in this context that the appellant submits that even if the high court was
correct in declaring the impugned contracts to be invalid, it ought to have been treated
in the same manner as that in Gijima, that is, be afforded just and equitable relief in
the form of an order that the declaration of invalidity shall not have the effect of
divesting it of its rights, which but for the declaration of invalidity it would have been
entitled to.19 This would have included its right to pursue the pending arbitration before
the second and third respondents and to contend for payment of services rendered at
‘market related rates’.

[41] #UniteBehind was admitted as an amicus curiae. It joined issue with PRASA in
opposing any alteration to the relief granted by the high court. It submitted that
Siyangena’s attempt to alter the relief falters at the first hurdle, in that it has not been
able to demonstrate any basis on which this Court should interfere with a true
discretion exercised by the court below in respect of the relief granted under s
172(1)(b).

[42] As observed in Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Limited and Another:20
‘[88]
When a lower court exercises a discretion in the true sense, it would ordinarily be
inappropriate for an appellate court to interfere unless it is satisfied that this discretion was not
exercised—

19 Gijima para 54.
20 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and
Another [2015] ZACC 22; 2015 (5) SA 245 (CC) paras 88-89.

“judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or
that it had reached a decision which in the result could not reasonably have been made by a
court properly directing itself to all the relevant facts and principles.” (Footnote omitted.)
An appellate court ought to be slow to substitute its own decision solely because it does not
agree with the permissible option chosen by the lower court.”
[89] In Florence, Moseneke DCJ stated:
“Where a court is granted wide decision-making powers with a number of options or variables,
an appellate court may not interfere unless it is clear that the choice the court has preferred is
at odds with the law.  If the impugned decision lies within a range of permissible decisions, an
appeal court may not interfere only because it favours a different option within the range. This
principle of appellate restraint preserves judicial comity. It fosters certainty in the application
of the law and favours finality in judicial decision-making.”.’

[43] In my view, Siyangena did not show that the high court had failed to exercise
its discretion judicially or, as this Court in Central Energy Fund SOC Ltd and Another
v Venus Rays Trade (Pty) Ltd and Others (Central Energy Fund) stated:21
‘. . . It may be interfered with on appeal only if this Court is satisfied that it was not exercised
judicially, or had been influenced by wrong principles or a misdirection of the facts, or if the
court reached a decision which “could not reasonably have been made by a court properly
directing itself to all the relevant facts and principles”. Put simply, the appellants must show
that the high court’s remedial order is clearly at odds with the law.’

[44] In the present case, Siyangena was rightly found by the high court to have been
‘complicit to the corruption, impropriety and maladministration’. It is inconsistent with
notions of justice and equity that it should be allowed to profit from the unlawful
procurement contracts. Furthermore, even innocent counterparties are not generally
entitled to benefit or profit from an unlawful contract.22

[45] Siyangena further contends that the order of the high court was imprecise and
incapable of implementation, in that it failed to define how the independent engineer
would attach a ‘value’ to the work which it has carried out. This argument has no merit.
The order of the high court specifically provides that if the parties are unable to agree

21 Central Energy Fund SOC Ltd and Another v Venus Rays Trade (Pty) Ltd and Others [2022] ZASCA
54; [2022] 2 All SA 626 (SCA) para 43.
22 AllPay 2 para 67.

on the identity of the engineer or if there is disagreement in the valuation of the works,
they are entitled to re-enrol the matter for the court to make a determination.

[46] There is precedent for an order, for instance, where an independent third party
is appointed to assess the financials of the contracts to determine the appropriate
accounting reconciliation.23 Thus, the appointment of the independent engineer,
particularly where parties are unable to agree on the value of the works, is not unusual.
In this case, PRASA contends that the equipment was not fit for purpose, because it
did not meet the need or provide the latest technology and, in various respects, was
implemented in a manner that was inadequate and incomplete. All of this points to the
need for an independent, qualified third party to assess and determine the financial
value of the works. This approach will ensure that Siyangena would not be benefitted
unduly and that PRASA would not be paying for services not rendered. Fairness is
achieved and justice is ensured for both parties.

[47] For all the reasons set out above, Siyangena’s appeal must fail.

Record
[48] It remains to comment on the size of the court record and the failure of the
appellant to produce a core bundle. SCA rule 8(7)(a) makes it plain that a core bundle
is to be prepared as an adjunct to the appeal record if appropriate. This is particularly
necessary where the record is voluminous. PRASA’s counsel alerted Siyangena to
this at the time when it filed its heads of argument in November 2021, almost nine
months before the hearing of the appeal. Correspondence was placed before us,
which indicates that in August 2021 Siyangena’s attorneys wrote to those acting for
PRASA stating that since the appeal is directed at ‘the whole of the judgment and
order (including costs)’, it would not serve any purpose or contribute to the
convenience of the SCA to omit any portion of the record from the bundles.

23 See Black Sash Trust v Minister of Social Development and Others (Freedom under Law Intervening)
[2018] ZACC 36; 2018 (12) BCLR 1472 (CC) (Black Sash I) paras 40 and 50; South African Social
Security Agency and Another v Minister of Social Development and Others [2018] ZACC 26; 2018 (10)
BCLR 1291 (CC) and Freedom Under Law NPC v Minister of Social Development (Corruption Watch
(NPC) RF and South African Post Office SOC Ltd Amiens Curiae) [2021] ZACC 5; 2021 (6) BCLR 575
(CC).

[49] PRASA’s attorneys responded expressing concern at the size of the record and
invited their opponents to ‘narrow the issues before the appeal court in a way that
would facilitate only parts of the record being included’. This recommendation was
unheeded, with the result that the record which was placed before us was made up of
41 volumes, comprising almost 8000 pages. According to Siyangena’s practice note,
approximately 1000 pages were relevant and necessary to read, excluding a further
2000 pages relevant to the ‘intervening witnesses’. It beggars belief as to why the
record comprised a further 7000 pages and why there was not at least a core bundle.

[50] Where appeal records contain unnecessary documentation or have not been
properly prepared in other respects, this Court has on several occasions limited the
costs
of
preparation,
perusal
and
copying
that
those
responsible
for preparing the record are entitled to claim.24 In Altech Radio Holdings (Pty) Limited
and Others v City of Tshwane Metropolitan Municipality,25 in light of the practitioners
not heeding previous warnings to prepare a core bundle, this Court sanctioned non-
compliance with the rules by ordering that the errant attorneys would not be permitted
to saddle their client with the costs of preparation of the record.

[51] It appears to me that in light of the blatant disregard by Siyangena’s attorneys,
who bear the primary obligation for the preparation of the record in accordance with
the rules, and their misguided view that it would be necessary for this Court to trawl
through approximately 8000 pages, a disallowance of costs for non-compliance with
the rules should follow.26

24 See Bothma-Batho Transport (Pty) Limited and Another v Nedbank Limited [2015] ZASCA 31 (SCA)
paras 20−21 (75 per cent of record superfluous); W T and Others v K T [2015] ZASCA 9; 2015 (3) SA
574 (SCA) paras 39−40 (record not cross-referenced); Bengwenyama-ya-Maswati Community and
Others v Minister for Mineral Resources and Others [2014] ZASCA 139; [2014] 4 All SA 539 (SCA) para
65; and Bengwenyama-ya-Maswati Community and Others v Genorah Resources (Pty) Ltd and Others
[2014] ZASCA 140; [2014] 4 All SA 673 (SCA) para 67 (appeal record more extensive than it ought to
have been; 10 per cent reduction in costs of appeal ordered).
25 Altech Radio Holdings (Pty) Limited and Others v City of Tshwane Metropolitan Municipality [2020]
ZASCA 122; 2021 (3) SA 25 (SCA) para 76.
26 City of Ekurhuleni Metropolitan Municipality v Takubiza Trading & Projects CC and Others [2022]
ZASCA 82 (SCA) paras 18-19.

Order
[52] In the result, the following order is made:
The appeal is dismissed with costs, including the costs of two counsel.
The appellant’s attorneys shall not be entitled to recover any of the costs
associated with the preparation, perusal or copying of the record.

________________________

M R CHETTY

ACTING JUDGE OF APPEAL

APPEARANCES

For the appellant:
N G D Maritz SC
[Heads of argument having been drafted by N G D
Maritz SC and S Pudifin-Jones]
Instructed by:
Van der Merwe & Associates, Pretoria

Honey Attorneys, Bloemfontein

For the first respondent:
Q G Leech SC (with H Shozi SC, M Kufa and J Chanza)
[Heads of argument having been drafted by A Subel SC,
Q G Leech SC, l Kutumela and O Makgotha]
Instructed by:
Ngeno and Mteto Incorporated, Pretoria

Mavuya Incorporated, Bloemfontein

For the amicus curiae:
N Ferreira (with him M Mbikiwa)
Instructed by:
Webber Wentzel, Johannesburg

Symington De Kok, Bloemfontein
THE 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:
1 November 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Siyangena Technologies (Pty) Ltd v PRASA and Others (487/2021) [2022] ZASCA 149
(1 November 2022)
The Supreme Court of Appeal (SCA) today dismissed an appeal with costs, including the costs
of two counsel, against the judgment of the Gauteng Division of the High Court, Pretoria (the
high court), which set aside certain procurement contracts entered into between the appellant,
Siyangena Technologies (Pty) Ltd (Siyangena) and the first respondent, the Passenger Rail
Agency of South Africa (PRASA).

Siyangena was appointed by PRASA to supply and maintain an integrated security access
management system (ISAMS) at various train stations. This was pursuant to a decision that
was taken by PRASA to initiate a pilot project to upgrade certain stations in preparation for the
2010 FIFA World Cup. The roll-out of the ISAMS programme was extended together with
substantially increasing costs through an ostensibly irregular procurement process. PRASA
approached the high court in March 2018 to have its own decisions to conclude the
procurement contracts to the value of approximately R5.5 billion with Siyangena reviewed and
set aside. The election by PRASA to set aside its own decisions was taken by the reconstituted
Board of Control of PRASA (the Board), which was appointed in August 2014. Prior to this,
the executive management committee fell under the control of the erstwhile Group Chief
Executive Officer (GCEO), Mr Montana, who resigned under a cloud in July 2015 amidst
mounting concern of mismanagement, as well as an ongoing investigation by the Public
Protector into maladministration at PRASA.

The SCA, firstly, dealt with the finding of the high court (differently composed from that which
eventually heard the matter – the ‘first court’) that affidavits of ‘intervening witnesses’ were
inadmissible. Those affidavits arose from the first court’s order that certain personnel from
PRASA, who were implicated in alleged wrongdoing, were entitled to intervene as witnesses
and deliver affidavits in their defence of their alleged wrongdoing. The SCA found that the
order permitting witness affidavits to be filed ought not to have been granted in the first place.
The SCA found further that the order by the first court granting leave to witnesses to intervene
was unprecedented; that there was no support for it in the rules of court or our substantive
law; and that the first court lacked the power to issue such an order, which was to all intents
and purposes a nullity. The SCA thus held that the high court was entitled to disregard the
affidavits produced in terms of that order on the basis that they were inadmissible.

In regard to whether there was a delay in instituting the legality review, and if so whether such
delay was nevertheless reasonable and should be condoned, the SCA found that there was
no ground to interfere with the high court’s decision to condone the delay of 10 months. This
was because the period of delay was not unreasonable in the circumstances, as PRASA had
acted expeditiously once the true reasons for the impugned decisions had come to light. This
was viewed in the context of the widespread corruption under the previous management of
PRASA under Mr Montana, which placed obstacles in the path of the newly constituted Board
to unearth the true state of affairs, by frustrating the flow of information. In order to unearth the
true extent of the mismanagement, the new Board had appointed a team of forensic
investigators. Furthermore, in the context of a litany of breaches of the procurement system,
condonation had to be granted in the interests of justice.

In regard to the high court’s inference of complicity in the corruption on the part of Siyangena,
the SCA concurred with that finding. That remained the only plausible inference on a
conspectus of all of uncontroverted evidence, which displayed a concerted effort on behalf of
officials within PRASA to debase almost all aspects of the procurement process, to the benefit
of Siyangena. The SCA was thus satisfied that the high court was ineluctably driven to
conclude that Siyangena was complicit, alternatively involved in the corruption in relation to
the impugned contracts. Consequently, the SCA held that where there was evidence of
corruption, an order declaring the contracts unconstitutional had to follow.

In regard to remedy, the high court ordered that an independent engineer be appointed in
order to determine whether any of the payments made to Siyangena by PRASA should be set
off against the value of the works done. The SCA found that Siyangena had not been able to
demonstrate any basis on which the SCA should have interfered with a true discretion
exercised by the court below in respect of the relief granted. This was because Siyangena did
not show that the high court had failed to exercise its discretion judicially.

The SCA held that Siyangena was rightly found by the high court to have been ‘complicit to
the corruption, impropriety and maladministration’. It was thus inconsistent with notions of
justice and equity that it should have been allowed to profit from the unlawful procurement
contracts. Additionally, the SCA rejected the argument that the high court order was imprecise
and incapable of implementation, as the parties were entitled to re-enrol the matter for the
court to make a determination if the parties were unable to agree on certain matters. Moreover,
the SCA found that there was precedent for an order, for instance, where an independent third
party was appointed to assess the financials of the contracts to determine the appropriate
accounting reconciliation. Accordingly, the SCA held that there was the need for an
independent, qualified third party to assess and determine the financial value of the works.
That approach ensured that Siyangena would not be benefitted unduly and that PRASA would
not be paying for services not rendered. Fairness was achieved and justice was ensured for
both parties.

Lastly, the SCA, notably, commented on the size of the court record and the failure of the
appellant to have produced a core bundle. This was particularly necessary where the record
was voluminous; the record which was placed before the SCA was made up of 41 volumes,
comprising almost 8000 pages. Notwithstanding, according to Siyangena’s practice note,
approximately 1000 pages were relevant and necessary to read, excluding a further 2000
pages relevant to the ‘intervening witnesses’.

The SCA found that in light of the blatant disregard by Siyangena’s attorneys, who bore the
primary obligation for the preparation of the record in accordance with the rules, and their
misguided view that it was necessary for the SCA to trawl through approximately 8000 pages,
a disallowance of costs for non-compliance with the rules should have followed. The SCA thus
held that the appellant’s attorneys were not entitled to recover any of the costs associated with
the preparation, perusal or copying of the record.

~~~~ends~~~~