THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1293/2021

In the matter between:
SOUTH AFRICAN FORESTRY COMPANY
SOC LTD
APPELLANT

and

COLLINS SEBOLA FINANCIAL
SERVICES (PTY) LTD                                                        FIRST RESPONDENT

TSEPO MONAHENG                                                       SECOND RESPONDENT

CLEMENT NHUVUNGA                                                        THIRD RESPONDENT

CHAIRPERSON OF THE BID SPECIFICATION
COMMITTEE OF THE APPELLANT                           FOURTH RESPONDENT

CHAIRPERSON OF THE BID EVALUATION
COMMITTEE OF THE APPELLANT                                   FIFTH RESPONDENT

CHAIRPERSON OF THE BID ADJUDICATION
COMMITTEE OF THE APPELLANT                                   SIXTH RESPONDENT

PHEPHA MV SECURITY SERVICE                               SEVENTH RESPONDENT

CHAIRPERSON OF THE AUDIT
COMMITTEE OF THE APPELLANT                              EIGHTH RESPONDENT

CHAIRPERSON OF THE FINANCIAL
COMMITTEE OF THE APPELLANT                              NINTH RESPONDENT

PHUTHADICHABA TRADING ENTERPRISE CC      TENTH RESPONDENT

Neutral citation: South African Forestry Company SOC Ltd v Collins Sebola
Financial Services (Pty) Ltd and Others (Case no 1293/2021)
[2023] ZASCA 18 (24 February 2023)
Coram:
PONNAN ADP, GORVEN, MOTHLE, WEINER and GOOSEN JJA
Heard:
20 February 2023
Delivered: 24 February 2023
Summary: Section 16(1)(a)(i) of the Superior Courts Act 10 of 2013 – contracts
pursuant to award of tenders to expire before an order on appeal can be enforced –
no practical effect of decision – appeal dismissed.

__________________________________________________________________
ORDER
______________________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Basson J), sitting
as court of first instance:
The appeal is dismissed with costs.

__________________________________________________________________
JUDGMENT
__________________________________________________________________
Gorven JA (Ponnan ADP, Mothle, Weiner and Goosen JJA concurring)
[1] This appeal arose from the award of a tender put out by the South African
Forestry Company SOC Ltd (SAFCOL), the appellant. It is a State Owned Company
and the third largest forestry company in South Africa. The appeal was opposed by
only Collins Sebola Financial Services (Pty) Ltd (Collins Sebola), the first
respondent. The tender, RFB 011/2019, was for security services, including forest
guards, required in the regions in which SAFCOL conducts its forestry operations
and for its business units. Each region comprises a number of plantations.

[2] Three bids were regarded as compliant, that of Collins Sebola, that of Phepha
MV Security Services (Phepha), the seventh respondent, and that of Puthadichaba
Trading Enterprise CC, the tenth respondent. The outcome was that, instead of
awarding a contract for all of the required security services to a single service
provider, two contracts were awarded. The bid of Collins Sebola succeeded for

certain plantations, forest guards and business units, while the bid of Phepha
succeeded for the balance of the services required. Pursuant to this, contracts were
concluded with both Collins Sebola and Phepha for provision of the services for
which their bids succeeded. That of Collins Sebola was worth R18 285 386.27 and
that of Phepha R62 193 884.32. Those contracts, for a three year period, were put
into effect and remain extant. The contract periods will expire by effluxion of time
on 31 March 2023.

[3] Aggrieved at the failure of SAFCOL to award it the entire tender, Collins
Sebola approached the Gauteng Division of the High Court, Pretoria (the high court),
to review and set aside the award to Phepha. Collins Sebola also sought an order
awarding to it those parts of the tender awarded to Phepha.

[4] The high court, per Basson J, granted the relief sought by Collins Sebola and
refused an application by SAFCOL for leave to appeal. The appeal came before us
with the leave of this Court.

[5] When the matter was called, enquiries were made of each counsel as to
whether the provisions of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 applied
to the appeal in view of the contracts expiring on 31 March 2023. Section 16(1)(a)(i)
provides:
‘When at the hearing of an appeal the issues are of such a nature that the decision sought will have
no practical effect or result, the appeal may be dismissed on this ground alone.’
Both counsel candidly conceded that the appeal fell squarely within the provisions
of s 16(2)(a)(i). If the appeal succeeded, the status quo concerning the continued
implementation of the contracts would obtain. On the other hand, if the appeal was
dismissed, it would not be feasible for Collins Sebola to take over and render the

services currently rendered by Phepha within the contract period. Not only that, but
Collins Sebola undertook not to attempt to do so.

[6] In those circumstances, and on that basis, both counsel acknowledged that the
appeal should be dismissed. Costs must follow the result and SAFCOL did not
contend otherwise.

[7] In the result, the appeal is dismissed with costs.

____________________
T R GORVEN
JUDGE OF APPEAL

Appearances

For appellant:
V Maleka SC
Instructed by:
AT Mpungose & Dlamini Incorporated, Pietermaritzburg
Matsepes Incorporated, Bloemfontein

For respondent:

Q Pelser SC
Instructed by:
Tambani Matumba Attorneys, Makhanda
Hendre Conradie Incorporated, 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:
24 February 2023
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.

South African Forestry Company SOC Ltd v Collins Sebola Financial
Services (Pty) Ltd and Others [2023] ZASCA 18

Today the Supreme Court of Appeal dismissed with costs an appeal from a judgment
of Basson J in the Gauteng Division of the High Court, Pretoria (the high court). The
appeal arose from the award of a tender for security services put out by the South
African Forestry Company SOC Ltd (SAFCOL). Instead of awarding the tender to a
single bidder, various forestry plantations and entities were divided between Collins
Sebola Financial Services (Pty) Ltd (Collins Sebola) and Phepha MV Security
Services (Phepha). Collins Sebola was aggrieved at the failure of SAFCOL to award
to it all of the plantations and approached the high court to review and set aside that
decision and for an order in terms of which it was awarded the entire tender. The
high court reviewed and set aside the tenders awarded to Phepha and ordered that
Collins Sebola be awarded the contracts concerning those tenders. Basson J
refused leave to appeal which was granted by the Supreme Court of Appeal.

Contracts with Collins Sebola and Phepha respectively were concluded pursuant to
the awards for a three-year term. The contracts are to expire by 31 March 2023. As
such, when the matter was argued in the Supreme Court of Appeal, enquiries were

made of counsel as to whether any decision made on appeal would have any
practical effect or result. In terms of s 16(2)(a)(i) of the Superior Courts Act 10 of
2013, if not, the appeal should be dismissed. Both counsel conceded that no
practical effect would result since it would not be possible for Collins Sebola to take
up the contracts in which Phepha was rendering services and to itself render
services before the contracts expired. For that reason, and in terms of the provisions
of s 16(2)(a)(i) of the Superior Courts Act, the Supreme Court of Appeal dismissed
the appeal with costs.