THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 662/2022

In the matter between:
INTEGRITY FORENSIC SOLUTIONS CC                             APPELLANT
and
AMAJUBA DISTRICT MUNICIPALITY                             RESPONDENT

Neutral citation: Integrity Forensic Solutions CC v Amajuba District
Municipality (662/2022) [2023] ZASCA 124 (28 September
2023)
Coram:
PONNAN, MABINDLA-BOQWANA and GOOSEN JJA and
WINDELL and KEIGHTLEY AJJA
Heard:
7 September 2023
Delivered: 28 September 2023
Summary: Contract – whether proved that contracting parties reached
consensus on terms of agreement – narrow factual issue determined at trial –
appeal court confirming factual findings – order in terms of s 16(1)(b) of
Superior Courts Act 10 of 2013 for special leave – Supreme Court of Appeal to
satisfy itself that threshold for special leave met as jurisdictional requirement –
appeal struck off the roll.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Koen, Poyo-Dlwati and Bezuidenhout JJ, sitting as court of appeal):
The appeal is struck off the roll with costs, including the costs of two counsel.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
Goosen JA (Ponnan and Mabindla-Boqwana JJA and Windell and
Keightley AJJA concurring)
[1] This case, not without irony, concerns an agreement to provide litigation
support services in relation to irregularities in a public institution, in
circumstances where the procurement of those services did not follow prescribed
procedures. The  primary question, however, was whether a valid and binding
agreement was concluded.

[2] Integrity Financial Services CC (IFS) was contracted by Amajuba District
Municipality (Amajuba) to investigate Amajuba’s procurement processes (the
forensic investigation). The agreement, about which there was no dispute,
originated as follows: During 2013, Amajuba requested its auditors, Thabani Zulu
Incorporated (Thabani Zulu), to conduct an audit of its procurement processes.
Thabani Zulu subcontracted this work to IFS. In 2014, Thabani Zulu produced a
preliminary audit report, which identified a number of serious irregularities
relating to supply chain procurement processes and unauthorised expenditure. Its
findings implicated a number of persons, including officials in the employ of
Amajuba. The findings were, however, preliminary. In order to facilitate the

recovery of misappropriated funds and disciplinary or criminal prosecution,
further investigation was required.

[3] Thabani Zulu, however, was no longer available to undertake this work.
Amajuba therefore procured the services of IFS directly. The then municipal
manager of Amajuba, Mr Afrika, obtained authorization for a deviation from the
procurement regulations in order to appoint IFS to undertake the further
investigation. The forensic investigation agreement was concluded in August
2015. The principal service obligation on the part of IFS was to produce a forensic
audit report relating to procurement and supply chain irregularities. It was agreed
that IFS would charge at the rate of R1 195.00 per hour for its services, to a
maximum amount of R1 242 800.00 exclusive of Value Added Tax.

[4] IFS submitted invoices for its work from time to time and was paid. It was
common cause that it produced the report as required. The present dispute arose
after the production of the audit report, which was delivered in August 2016. On
17 May 2018, IFS issued summons against Amajuba for payment of two claims.
The first was for payment of R276 297.51, plus interest arising from the audit
investigation agreement (the first claim). The second was for payment of three
amounts totalling R754 557.15, plus interest (the second claim). The second
claim arose from a further agreement, which it was alleged had been concluded
on 25 August 2016. Its object was the provision of litigation support services to
the National Prosecuting Authority (the NPA) and the Directorate of Priority
Crimes (the DPC) on behalf of Amajuba. The first claim was settled. The second
is the subject of the appeal.

[5] Amajuba pleaded that no agreement was concluded. In the alternative, it
denied that Mr Afrika had the requisite authority to conclude the alleged
agreement. In a further alternative, albeit only generally pleaded, Amajuba denied

the lawfulness of the alleged agreement. In its replication, IFS raised an estoppel
in relation to the lack of authority defence.

[6] The issue before the trial court was ‘whether a valid agreement had been
concluded between the parties which was capable of contractual enforcement in
respect of the second claim’. IFS presented the evidence of Mr Afrika and its
principal member, Mr Saunders, whom it alleged had concluded the agreement.
Mr Zwane, Amajuba’s municipal manager, testified on its behalf.

[7] The trial court found that no valid agreement for the provision of litigation
support had come into being. It therefore dismissed IFS’s claim with costs. IFS
prosecuted an appeal to the full court of the KwaZulu-Natal Division of the High
Court, Pietermaritzburg. The full court dismissed the appeal. It found that no valid
and binding agreement with terms sufficiently certain to give rise to a binding
obligation in law, was proved. The appeal  is before us  pursuant to special leave
granted on petition to this Court.

[8] This Court’s appeal jurisdiction derives from s 16 of the Superior Courts
Act 10 of 2013 (the Act). In Absa Bank v Snyman, Brand JA said:
‘…this court only has jurisdiction to hear an appeal against an order of a high court if leave to
do so had been granted by that court, or in the event of a refusal by that court, by this court.’1

[9] Where the judgment is that of a high court on appeal to it, special leave to
appeal must be obtained from this Court, in terms of s 16(1)(b) of the Act. In that
event, in addition to the ordinary requirement of reasonable prospects, it must be
shown that there are special circumstances which merit a further appeal. These

1 Absa Bank Limited v Snyman [2015] ZASCA 67; 2015 (4) SA 329 (SCA); [2015] 3 All SA 1 (SCA) para 10. In
Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd [2015] ZASCA 25; 2015 (4) SA 34 (SCA);
[2015] 2 All SA 322 (SCA) para 13, Brand JA described the order granting leave to appeal as a ‘jurisdictional
fact’, in the absence of which the court does not have the jurisdiction to entertain the dispute. See also DRDGOLD
Limited and Another v Nkala and Others [2023] ZASCA 9; 2023 (3) SA 461 (SCA) para 17 and 18.

would include a substantial point of law; or that the matter is of considerable
importance to the parties, or of great public importance; or, where the prospects
of success are so strong that a refusal of leave would probably result in a manifest
denial of justice.2

[10] The granting of special leave to appeal on petition to the President of this
Court is not dispositive of the question whether special circumstances exist to
engage this Court’s jurisdiction. That question is one ultimately for the court
hearing the appeal.3

[11] IFS’s case was that an agreement was concluded between it and Amajuba
to provide litigation support in the prosecution of persons identified in the audit
report. Its pleaded case was that the agreement was a tripartite one in as much as
it also involved the DPC. It was alleged to be partly oral and partly written. Before
this Court, counsel for IFS conceded that the agreement conferred no rights upon,
nor imposed any obligations on the DPC and was therefore not in fact a tripartite
one. Counsel also conceded that the letter of mandate, said to reflect the written
terms of the alleged agreement, was framed in the broadest of terms. It did not
indicate express agreement regarding the scope of the work to be performed.

[12] Mr Afrika stated that it was envisaged that the parties would engage with
one another and reach agreement on the costs of the litigation support services.
This would allow Amajuba to make provision for such costs. As far as the written
mandate was concerned, he explained that this indicated the scope of work to be
undertaken, but that the parties would engage in further discussion when they

2 Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 548 (A) at 564H-565E;
National Union of Metalworkers of South Africa and Others v Fry’s Metals (Pty) Ltd 2005 (5) SA 433 (SCA) para
42-43.
3 National Union of Mineworkers and Another v Samancor Limited (Tubatse Ferrochrome) and Others [2011]
ZASCA 74; [2011] 11 BLLR 1041 (SCA); (2011) 32 ILJ 1618 (SCA) para 14-15; Stu Davidson & Sons (Pty) Ltd
v East Cape Motors (Pty) Ltd [2018] ZASCA 26 paras 3 and 18.

were ready to commence the work. It is important to emphasise that Mr Afrika
was the person who represented Amajuba in the conclusion of the alleged
agreement, and that his evidence was presented by IFS to support their pleaded
case. As far as the lawfulness of the contract was concerned, Mr Afrika stated
that the litigation support agreement was an ‘extension’ of the forensic
investigation agreement and was, in his view, covered by the initial deviation
from the procurement process. The costs and duration of the services were matters
to be dealt with when the support services were to be provided.

[13] Mr Saunders believed that agreement had been reached on the essential
terms. He had agreed to continue providing services at the same rate IFS had
previously charged. He conceded that the work to be performed would be that
which was required by the DPC or the NPA. He anticipated the ongoing
involvement by Mr Afrika in the execution of the contract. His evidence was that
once Mr Afrika had left Amajuba, he tried in vain to find someone from Amajuba
who would step in to represent it .

[14] The undisputed evidence of Mr Zwane was that no letter of instruction or
order was issued by Amajuba for the work performed by IFS. There was no
authorisation for a deviation from the procurement requirements and no budget
provision was made for such work. On the facts, there was no indication of the
duration of the contract. The cumulative effect of the evidence of Mr Afrika and
Mr Saunders was tantamount to evidence of an unenforceable agreement to
agree.4 The trial court found that the evidence did not prove that a valid and
binding agreement had been concluded. The full court confirmed the finding. Its
conclusion was that there was no agreement regarding the scope of specific

4 Shepherd Real Estate Investments (Pty) Ltd v Roux Le Roux Motors CC [2019] ZASCA 178; 2020 (2) SA 419
(SCA).

litigation support to be provided; no price was agreed for the provision of the
services and the duration of the agreement was not specified. There was
accordingly no agreement which was capable of enforcement.

[15] This  takes me back to the question concerning special leave to appeal. On
the evidence presented before the trial court, its finding that no contract came into
existence, cannot be faulted. It follows that the minimum requirement for the
granting of special leave, namely, that there should at least be a reasonable
prospect of success on appeal, is not met. In the notice of appeal, IFS sought to
invoke s 172 of the Constitution. The contention was that if it was found that an
agreement was concluded, there was no dispute that it was concluded contrary to
procurement requirements stipulated by s 217 of the Constitution. For this reason,
the court would be required, when setting it aside, to grant IFS just and equitable
relief.  This would, it was submitted, compensate IFS for the work it had actually
performed.

[16] These aspects do not arise. On the facts, no contract was proved. The
question of an equitable remedy, even assuming that this issue was properly
raised on the pleadings, could only arise if there was a contract to set aside.
Counsel for IFS conceded this. He accepted, in effect, that it is only in relation to
these questions that it might be said that the appeal raises matters of importance
or significance. Accordingly, no special circumstances exist which would warrant
a further appeal to this Court. It follows that the threshold for special leave to
appeal was not met.

[17] In the circumstances, the appeal must be struck from the roll. Counsel for
Amajuba sought the costs of two counsel on the basis that special leave was
initially granted by the two judges of this court who considered the petition and
it was therefore necessary to prepare upon the full ambit of issues, including the

constitutional questions which might arise. Counsel for IFS did not argue to the
contrary.

[18] In the result, the appeal is struck off the roll with costs, including the costs
of two counsel.

_______________________
G GOOSEN
JUDGE OF APPEAL

Appearances

For the appellant:
I Veerasamy
Instructed by:

Norton Rose Fulbright South Africa Inc, Durban
Phatshoane Henney Attorneys, Bloemfontein

For the respondent:
L E Combrink SC (with J P Pretorius)
Instructed by:

DBM Attorneys, Newcastle

Lovius Block Inc, 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:

28 September 2023
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
Integrity Forensic Solutions CC v Amajuba District Municipality (662/2022) [2023] ZASCA 124 (28
September 2023)
The Supreme Court of Appeal (SCA) today struck off the roll an appeal against a judgment of the full
court of the KwaZulu-Natal Division of the High Court, Pietermaritzburg (the full court). The case
concerned a contract to provide litigation support services to a district municipality in the prosecution of
persons for procurement irregularities.
The appellant, Integrity Financial Services CC (IFS), sued the respondent, Amajuba District Municipality
(Amajuba) in the KwaZulu-Natal Division of the High Court (the trial court) for payment of two claims
alleged to be due for services it rendered. The first claim arose from a contract concluded between IFS
and Amajuba in 2014 for forensic investigation services. That claim was settled prior to the trial. The
second claim arose from a separate agreement to provide litigation support services to the Directorate
of Priority Crimes (the DPC) and to the National Prosecuting Authority (the NPA) on behalf of Amajuba.
The services related to the prosecution of persons implicated in procurement and supply chain
irregularities. The agreement was alleged to have been concluded in August 2015.
Amajuba’s pleaded defence was that no valid and binding agreement had been concluded. It also raised
an alternative plea that the Municipal Manager, who was alleged to have represented Amajuba, lacked
the authority to conclude the agreement and, in any event, that the agreement was unlawful since it did
not comply with Amajuba’s procurement requirements.
The trial court found that IFS failed to prove the existence of a valid and binding agreement. IFS
appealed to the full court, which confirmed the trial court’s finding that no agreement had come into
existence. IFS applied for special leave to appeal to the SCA in terms of s 16(1)(b) of the Superior
Courts Act 10 of 2013. The application was considered by two judges of the SCA who granted leave on
petition.
The SCA confirmed the principle that the court hearing the special appeal, must be satisfied that the
threshold test for granting special leave to appeal has been met. On the evidence presented at the trial,
it found that no agreement was concluded. The trial court was therefore correct in its finding. The full
court’s assessment of the trial court’s treatment of the evidence was also without fault. The SCA
concluded that no reasonable prospect existed that those findings could be overturned. The case,
therefore, did not meet the minimum threshold for special leave to appeal. In the light of the unassailable
finding that no contract came into existence, questions relating to the authority to conclude an
agreement and the setting aside of an unlawful agreement, did not arise. There were therefore no
special circumstances or issues of considerable importance present to warrant special leave to appeal.
The SCA concluded that it lacked jurisdiction to hear the appeal and struck the matter off the roll with
costs, including the costs of two counsel.
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