THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 894/2016
In the matter between:

ASLA CONSTRUCTION (PTY) LIMITED
APPELLANT

and

BUFFALO CITY METROPOLITAN MUNICIPALITY
RESPONDENT

THE SOUTH AFRICAN CIVICS ORGANISATION
AMICUS CURIAE

Neutral citation:
Asla Construction (Pty) Ltd v Buffalo City Metropolitan
Municipality (894/2016) [2017] ZASCA 23 (24 March 2017)

Coram:
Ponnan, Cachalia, Swain and Dambuza JJA and Gorven AJA

Heard:
23 February 2017

Delivered:
24 March 2017

Summary:    Promotion of Administrative Justice Act 3 of 2000 : ss 6, 7 and 9 :
application in terms of s 9 for extension of statutory period in terms of s 7 :
substantive application required : no explanation for entire duration of delay : failure
to properly consider prejudice to appellant and members of public affected by
decision : impugned decision validated by unreasonable delay : unlawfulness of
decision not proved by admissible evidence.

ORDER

On appeal from: Eastern Cape Division of the High Court, Grahamstown (Revelas J)
sitting as court of first instance.
The following order is made:
(a) The appeal succeeds with costs, such costs to include the costs of two counsel.
(b) The order of the court a quo is set aside and replaced with the following order:
In case number 5246/2015;
‘The defendant is ordered to pay the plaintiff's costs, such costs to include the costs
of two counsel where employed.’
In case number 5668/2015
‘The application is dismissed with costs, such costs to include the costs of two
counsel where employed.’

JUDGMENT
___________________________________________________________________
Swain JA (Ponnan, Cachalia and Dambuza JJA and Gorven AJA concurring)
[1] This appeal must be considered against the background of a desperate need for
adequate housing by the residents of Duncan Village, which falls within the
jurisdiction of the Buffalo City Metropolitan Municipality (the respondent). The dispute
between the parties arose from the award of a contract by the respondent to Asla
Construction (Pty) Ltd (the appellant), with the object of addressing this need. The
desperation of the residents is highlighted by the fact that the South African Civics

Association was admitted as an amicus curiae to set out the views and represent the
interests of the community of Duncan Village, in the resolution of this dispute.
[2] The first step in the proceedings was taken when the appellant sought
provisional sentence against the respondent before the Eastern Cape Division of the
High Court (Grahamstown), based upon payment certificates issued in terms of two
contracts, namely number 1319/2013 - the ‘Turnkey’ contract, concluded between the
parties on 30 May 2014, and number 1122/2010 – the ‘Reeston’ contract, concluded
between the parties on 14 January 2015. The respondent opposed the relief sought
on the basis that the payment certificates relied upon were predicated upon a valid
appointment of the engineers who issued these certificates, which in turn depended
upon the validity of the contract. It was alleged that the conclusion of the Turnkey
contract was unlawful but because the claim of the appellant was not based upon this
contract, but rather the Reeston contract, it was not necessary to challenge its
validity. It was further alleged that the Reeston contract was unlawful and void, ab
initio, because of a failure by the respondent in awarding this contract to comply with
s 217 of the Constitution, as well as the procurement legislation and policies which
were binding on the respondent. Section 217 provides that in contracting for goods or
services an organ of state must do so in a manner that is fair, equitable, transparent,
cost competitive and cost effective. The respondent accordingly, by way of a counter
application, sought an order reviewing and setting aside the award of the Reeston
contract to the respondent and declaring that any payment certificates issued in terms
of this contract were void ab initio.
[3] The court a quo (Revelas J), upheld the contentions of the respondent. The
learned judge accordingly declared the Reeston contract invalid, set it aside and
declared the payment certificates issued in terms of the contract void ab initio. The
appellant's action for provisional sentence was accordingly dismissed with costs.
Leave to appeal to this Court was thereafter granted by the court a quo.
[4] Central to the dispute before the court a quo was the appellant’s contention
that the respondent had failed to bring the application for the review and setting aside

of the Reeston contract, without unreasonable delay and within 180 days of its award.
Section 7 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) provides as
follows:
‘(1) Any proceedings for judicial review in terms of section 6(1) must be instituted without
unreasonable delay and not later than 180 days after the date –
(a) subject to subsection (2)(c), on which any proceedings instituted in terms of internal
remedies as contemplated in subsection (2)(a) have been concluded; or
(b) where no such remedies exist, on which the person concerned was informed of the
administrative action, became aware of the action and the reasons for it or might reasonably
have been expected to have become aware of the action and the reasons.’
[5] In addition, the appellant contended that the respondent had failed to
adequately explain the delay, which in all the circumstances, so it was contended,
was unreasonable. Section 9 provides as follows:
‘(1) The period of –
(a) . . .
(b)  90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed period,
by agreement between the parties or, failing such agreement, by a court or tribunal on
application by the person or administrator concerned.
(2) The court or tribunal may grant an application in terms of subsection (1) where the
interests of justice so require.’
[6] The respondent however failed to incorporate as part of the application to
review the Reeston contract, an application for the extension of the 180 day period in
terms of s 9 of PAJA. The relevance of PAJA was raised by the appellant in its
opposing affidavit alleging that the respondent had failed to comply with the
provisions of s 7 of PAJA. In reply, the respondent averred that the application had
indeed been brought within the period of 180 days stipulated in s 7 of PAJA, because
the respondent (as represented by its council) only became aware of the unlawful
administrative action in awarding the Reeston contract on 28 October 2015. In the
alternative, it was averred that the interests of justice justified an extension of the

period of 180 days contained in s 7 of PAJA.
[7] The contention of the respondent that the time period only commenced running
once it became aware of the unlawful administrative action, is untenable. The issue of
whether knowledge of the reviewable irregularities in the decision sought to be
reviewed was required before this period commenced running, was decided by this
Court in Aurecon South Africa (Pty) Ltd v Cape Town City [2015] ZASCA 209; 2016
(2) SA 199 (SCA) para 16, in the following terms:
‘The decision challenged by the City and the reasons therefore were its own and were always
within its knowledge. Section 7(1) unambiguously refers to the date on which the reasons for
administrative action became known or ought reasonably to have become known to the party
seeking its judicial review. The plain wording of these provisions simply does not support the
meaning ascribed to them by the court a quo, ie that the application must be launched within
180 days after the party seeking review became aware that the administrative action in issue
was tainted by irregularity. That interpretation would automatically entitle every aggrieved
applicant to an unqualified right to institute judicial review only upon gaining knowledge that a
decision (and its underlying reasons), of which he or she had been aware all along, was
tainted by irregularity, whenever that might be. This result is untenable as it disregards the
potential prejudice to the respondent (the appellant here) and the public interest in the finality
of administrative decisions and the exercise of administrative functions.’1
[8] The respondent therefore required an extension of the period fixed by PAJA
within which to bring the application for review. Section 9 contemplates a substantive
application to the relevant court or tribunal, by the person or administrator concerned.
That application ought to have been made by the respondent when it first approached
the court for relief. It did not do so. Once the appellant had raised the issue of
compliance with PAJA, the respondent was obliged to launch an application in terms
of this section for an extension of the fixed period. This application could thereafter
have been consolidated with the review application. The correct procedure would
have ensured that the relevant facts were placed before the court a quo, to enable it

1 Approved in City of Cape Town v Aurecon South Africa (Pty) Ltd (CCT 21/16) [2017] ZACC 5 (28
February 2017) paras 40-44.

to exercise its discretion properly.
[9] The court a quo held that the decisive factor in exercising its discretion whether
to grant an extension, was its finding that the procurement in respect of the Reeston
contract was not ‘legal and regular’. This was based upon a finding that the award of
this contract did not comply with the requirements of s 217 of the Constitution.
Accordingly, so held the court a quo, the award of the contract was consequently
invalid and fell to be set aside. Because of the serious breach of the section, and the
other statutory instruments that regulated procurement in the context of local
government, the court a quo decided that it was in the interests of justice that the
respondent be granted the requisite extension in terms of s 9 of PAJA, to review and
set aside the award of the contract. It added that ‘Accordingly, the invalidity of the
decision to award the Reeston contract to the respondent cannot be validated’.
[10]  This conclusion was erroneous. It was the product of a number of misdirections
committed by the court a quo.
(a) It impermissibly decided the merits of the review application before considering
and determining the application for condonation. In doing so, it effectively precluded
any finding that the application for condonation should be refused on its merits, with
the result that any unlawful award of the Reeston contract would be ‘validated’ by the
delay.
(b) It regarded the serious nature of the breach of s 217 of the Constitution, as a
complete bar to the ‘validation’ of the award of the Reeston contract to the appellant,
which could have followed as a result of the delay in bringing the application for
condonation.
(c) It failed to consider whether the respondent had furnished a full and adequate
explanation for the entire duration of the delay.
(d) It failed to properly consider the extent to which the appellant had proceeded with
the performance of the contract, and the resulting prejudice to the appellant in setting
the contract aside at that stage.
(e) It failed to properly consider the nature and extent of the prejudice to be suffered

by the inhabitants of Duncan Village and the broader public interest, in setting the
contract aside at that stage.
[11]  The manner in which the discretion to extend the statutory time period should
be exercised, was described in Camps Bay Ratepayers’ and Residents’ Association
& another v Harrison & another [2010] ZASCA 3; 2010 (2) All SA 519 (SCA) para 54,
in the following terms:
‘And the question whether the interests of justice require the grant of such extension depends
on the facts and circumstances of each case: the party seeking it must furnish a full and
reasonable explanation for the delay which covers the entire duration thereof and relevant
factors include the nature of the relief sought, the extent and cause of the delay, its effect on
the administration of justice and other litigants, the importance of the issue to be raised in the
intended proceedings and the prospects of success.’ [My emphasis.]
[12]  Although a consideration of the prospects of success of the application for
review requires an examination of its merits, this does not encompass their
determination. In Beweging vir Christelik-Volkseie Onderwys v Minister of Education
[2012] ZASCA 45; 2012 (2) All SA 462 (SCA) paras 42-44, the proposition that a
court is required to decide the merits before considering whether the application for
review was brought out of time or after undue delay and, if so, whether or not to
condone the defect, was rejected. Thereafter, in Opposition to Urban Tolling Alliance
v South African National Roads Agency Ltd [2013] ZASCA 148; 2013 (4) All SA 639
(SCA) paras 22, 26 and 43, it was decided that a court was compelled to deal with the
delay rule before examining the merits of the review application, because in the
absence of an extension the court had no authority to entertain the review application.
The court there concluded that because an extension of the 180 day period was not
justified, it followed that it was not authorised to enter into the merits of the review
application. However, in South African National Roads Agency Limited v Cape Town
City [2016] ZASCA 122; 2016 (4) All SA 332 (SCA); 2017 (1) SA 468 para 81, a
submission based upon this decision, namely that the question of delay had to be
dealt with before the merits of the review could be entertained, was answered as
follows:

‘It is true that . . . this court considered it important to settle the court's jurisdiction to entertain
the merits of the matter by first having regard to the question of delay. However, it cannot be
read to signal a clinical excision of the merits of the impugned decision, which must be a
critical factor when a court embarks on a consideration of all the circumstances of a case in
order to determine whether the interests of justice dictates that the delay should be
condoned. It would have to include a consideration of whether the non-compliance with
statutory prescripts was egregious.’
[13] A full and proper determination of the merits of the review application was
accordingly dependent upon a finding that the respondent's failure had to be
condoned. As stated in Opposition to Urban Tolling Alliance supra, para 26;
‘Absent such extension the court has no authority to entertain the review application at all.
Whether or not the decision was unlawful no longer matters. The decision has been
"validated" by the delay . . . ’
It was thus impermissible for the court a quo to have entered into and decided the
merits of the review application without having first decided the merits of the
condonation application.
[14]  In deciding that the ‘serious breach of section 217 of the Constitution’ was
dispositive of the application for condonation, the court a quo failed to have regard to
what was said in Opposition to Urban Tolling Alliance supra, para 36. A submission
that the 180 day time bar should be extended because it was a requirement of the
rule of law that the exercise of all public power should be lawful and the
decision-maker had failed to act legally, was rejected in the following terms:
‘As I see it, however, the argument is misconceived. While it is true that the principle of
legality is constitutionally entrenched, the constitutional enjoinder to fair administrative action,
as it has been expressed through PAJA, expressly recognises that even unlawful
administrative action may be rendered unassailable by delay.’
[15]  This erroneous approach resulted in a failure by the court a quo to properly
consider whether the respondent had furnished ‘a full and reasonable explanation for
the delay which covers the entire duration thereof’ (Harrison supra para 50). The only
explanation provided by the respondent for the delay, namely that it only became

aware of the alleged irregularities relating to the award of the Reeston contract, when
a forensic report was presented to it on 28 October 2015, was no explanation at all.
[16]  There was a delay of fifteen months between the award of the contract to the
appellant and the institution of the review proceedings by the respondent. The
Reeston contract was awarded to the appellant on the 7 August 2014 followed by its
conclusion on the 18 December 2014. Thereafter the respondent instructed the
appellant to proceed with the implementation of the contract on the 23 January 2015
and made payment of the appellant's first claim in the amount of R2 221 587.37, on
the 20 May 2015. On the 4 August 2015 a senior official of the respondent Mr Vincent
Pillay reported the alleged irregularities in the conclusion of the contracts with the
appellant, to the Executive Mayor, who reported to the Council of the respondent on
the 25 August 2015. The council resolved that these issues should be investigated by
an independent investigator and Ms York was appointed. Her report became
available on the 21 October 2015 and served before the Council of the respondent on
the 28 October 2015. The Council resolved that legal advice be obtained as to the
validity of the appellant's claims. The application for a review of the award of the
Reeston contract was thereafter launched during November 2015.
[17]  A glaring omission by the respondent is that no affidavit was obtained from Mr
Pillay. He would have been able to explain why the contract was awarded to the
appellant, why the contract was signed and why the appellant was thereafter
instructed to proceed with the work. In addition he would have been able to explain
why the first payment was made, how he discovered that the award of the contract
was irregular and why it took twelve months from the time the contract was awarded,
to discover this. An important aspect that he could have explained, were the steps
that should have been taken by the respondent to avoid what it maintains was an
unlawful award of the contract. The respondent quite clearly failed to furnish a full and
reasonable explanation for the delay, which covered its entire duration.
[18] The rationale for the rule that an application for the review of an administrative
decision should be launched without undue delay, is predicated upon a desire to

avoid prejudice to those who may be affected by the impugned decision. As was said
in Gqwetha v Transkei Development Corporation Ltd & others 2006 (2) SA 603 (SCA)
paras 22-24, the rule is based upon two principles namely, that ‘the failure to bring a
review within a reasonable time may cause prejudice to the respondent . . . and . . . there is a
public interest element in the finality of administrative decisions and the exercise of
administrative functions . . . Underlying that latter aspect of the rationale is the inherent
potential for prejudice, both to the efficient functioning of the public body and to those who
rely upon its decisions, if the validity of its decisions remains uncertain. It is for that reason in
particular that proof of actual prejudice to the respondent is not a precondition for refusing to
entertain review proceedings by reason of undue delay, although the extent to which
prejudice has been shown is a relevant consideration that might even be decisive where the
delay has been relatively slight . . . Whether there has been undue delay entails a factual
enquiry upon which a value judgment is called for in the light of all the relevant circumstances
including any explanation that is offered for the delay . . . A material fact to be taken into
account in making that value judgment – bearing in mind the rationale for the rule – is the
nature of the challenged decision. Not all decisions have the same potential for prejudice to
result from their being set aside.’
A consideration of the consequences of setting a decision aside and any resultant
prejudice, was said to be an important consideration (paras 33-34);
‘ . . . [D]elay cannot be evaluated in a vacuum but only relative to the challenged decision,
and particularly with the potential for prejudice in mind . . .’ .
In the exercise of the discretion to condone an unreasonable delay, the prospect of
the challenged decision being set aside is not:
‘a material consideration in the absence of an evaluation of what the consequences of setting
the decision aside are likely to be . . .’ .
[19]  The prejudice to be suffered by the appellant in setting aside the award of the
contract, was dealt with by the court a quo in the following terms; ‘It cannot be
disputed that the respondent incurred substantial expenses by carrying out the
applicants instruction to proceed with the execution of the Reeston contract’. It also
found that ‘[i]t is not clear how much construction work has been done so far in terms
of the contract. The contract price was just over R74 million and so far about

R7 million has been claimed for work done. It has to be accepted that the Reeston
contract is not near completion’. In this finding it erred because the appellant filed an
affidavit shortly before the hearing of the matter, which showed by reference to
engineers’ certificates annexed to the affidavit, that work in the total amount of
R30 863 832.70, had been completed by the appellant. The court a quo accordingly
failed to properly consider the extent of the appellant’s prejudice, which was far
greater than the assumption it had made in the face of evidence to the contrary.
[20] Although reference is made in the judgment to the ‘convenient, practical and
laudable’ considerations behind the award of the contract to the appellant, no
consideration was afforded to the prejudice to be suffered by the inhabitants of
Duncan village, as a result of the inevitable delay in providing them with adequate
housing, which would flow from a declaration of invalidity. The appellant set out how
the interests of the community of Duncan Village would suffer immeasurable
prejudice if the award of the contract was set aside. The appellant had employed
workers from the local community who supported between 250 to 300 families,
offering desperately needed job opportunities to the community. The South African
Civics Organisation in its capacity as the amicus curiae for the inhabitants of Duncan
Village, submits that the community of Duncan Village and surrounds, including
Reeston, will suffer extensively if the respondent's challenge to the validity of the
award of the Reeston contract is upheld. It is alleged that the respondent did not
consult the community before launching the review application. Setting the Reeston
contract aside will result in untold misery and hardship to the community, who have
been waiting for housing for years.
[21] There is further evidence which is relevant in assessing the prejudice to the
appellant. The court a quo in granting leave to appeal recorded that shortly before the
application for leave to appeal was argued, the appellant filed an affidavit which
disclosed that since the launch of the review application, the appellant had continued
to perform the contract, with the ostensible permission of the respondent. The
respondent did not object to the affidavit being handed in, but submitted that the
application for leave to appeal had to be considered on the evidence available when

the matter was argued. The court a quo however decided that in the circumstances of
the case, such an approach would be imprudent and unfair. The new evidence
contradicted the courts earlier finding that the contract was not near completion and
revealed that it now was. The court a quo acknowledged that this erroneous finding
had influenced its decision to grant the respondent an extension under s 9 of PAJA.
For this reason and others it granted leave to appeal to this Court. In Moseme Road
Construction CC & others v King Civil Engineering Contractors (Pty) Ltd & another
[2010] ZASCA 13; 2010 (4) SA 359 (SCA) para 17, in response to an argument by the
appellant that the contract was now near completion and that because of the
intervening facts, the order of the court below should be set aside, the following was
stated:
‘There is a conceptual problem with the submission. The issue on appeal is whether the order
granted by the court below was correct at the time it issued. Supervening events cannot
affect the answer, although they might conceivably affect enforceability on the ground of
supervening impossibility.’
[22]  In the affidavit in question, the appellant indicated that in the event of leave to
appeal being granted, it would apply for the admission of the evidence by this Court.
Counsel for the appellant relying upon the decision in Rail Commuters Action Group v
Transnet Limited t/a Metrorail 2005 (2) SA 359 (CC) paras 42 – 43 submitted that the
evidence that the contract had been practically completed by the appellant in the
interim, to the value of R 65 641 776.15 as at the 27 July 2016, should be admitted as
evidence on appeal. In Transnet the following was stated:
‘The Court should exercise the powers conferred by s 22 "sparingly" and further evidence on
appeal (which does not fall within the terms of Rule 31) should only be admitted in
exceptional circumstances. Such evidence must be weighty, material and to be believed. In
addition, whether there is a reasonable explanation for its late filing is an important factor.
The existence of a substantial dispute of fact in relation to it will militate against its being
admitted.’2
By reference to the decision in Colman v Dunbar 1933 AD 141 at 161-3, relevant

2 The repealed provisions of s 22(a) of the Supreme Court Act 59 of 1959 are now provided for in s
19(b) of the Superior Courts Act 10 of 2013.

criteria in determining whether evidence on appeal should be admitted were said to
be:
‘. . . the need for finality, the undesirability of permitting a litigant who has been remiss in
bringing forth evidence to produce it late in the day, and the need to avoid prejudice.’
[23]  The evidence is not disputed, is weighty and material to a determination of the
issues in this appeal. By its very nature it could not have been produced at an earlier
stage in the proceedings. To exclude its admission would be prejudicial to the
appellant and run counter to the interests of justice as it establishes that the contract
has been practically completed, with the ostensible permission of the respondent. In
addition the court a quo acknowledged that its decision at the time had been based,
upon incorrect facts. The evidence is accordingly admitted.
[24]  The delay by the respondents in launching the application for a review
exceeded 180 days and was therefore ‘unreasonable per se’ (Opposition to Urban
Tolling Alliance supra para 26). Even after this period an enquiry into the
reasonableness of the conduct of the respondent was necessary, in order to
determine whether the interests of justice dictate an extension of the time period
(Opposition to Urban Tolling Alliance supra para 26). When regard is had to the
abject failure by the respondent to furnish a full and adequate explanation for the
entire duration of the unreasonable delay, together with the severe prejudice to the
appellant and the inhabitants of Duncan Village, caused by reviewing and setting
aside the Reeston contract, it is quite clear that the court a quo erred in granting an
extension of the time period in terms of s 9 of PAJA. The application for the review
and setting aside of the award of the Reeston contract to the appellant, together with
the order declaring the payment certificates issued in terms of this contract void ab
initio, should have been refused. The award of the Reeston contract was accordingly
‘validated’, insofar as this may have been necessary, by the undue delay of the
respondent. The payment certificates relied upon are accordingly valid.
[25] Strictly speaking an enquiry as to whether the court a quo was correct in
concluding that there had been a serious breach of s 217 of the Constitution in the

award of the Reeston contract to the appellant, is rendered unnecessary by this
conclusion. I will nevertheless do so as the court a quo based its finding on evidence
that was largely inadmissible. The contention of the respondent that the requirements
of s 217 of the Constitution were not complied with, was based entirely on the
evidence of Ms York. The evidence was however in most parts inadmissible. The
report she compiled which formed the basis for her affidavit was based on documents
provided to her by the respondent, as well as interviews with persons in the
respondents employ. Documents relied upon in formulating her views were not
annexed to her affidavit and not all of the documents referred to were placed before
the court a quo. No confirmatory affidavits by the persons she interviewed were
annexed to her affidavit. As a result her evidence in these respects constituted
inadmissible hearsay evidence. In addition she purported to interpret and express her
opinion on the contents of certain documents, which was the sole preserve of the
court a quo. This constituted irrelevant and inadmissible opinion evidence. The
remaining evidence of Ms York, which was admissible and upon which the court a
quo was entitled to rely, did not prove that the award of the Reeston contract
contravened the provisions of s 217 of the Constitution.
[26]  In the result it is unnecessary to consider an alternative argument advanced by
the appellant. This was that the requirements of s 217 of the Constitution were
complied with when the appellant was appointed as the turnkey implementing agent
in terms of the Turnkey contract, to address the housing needs of Duncan village. The
award of the Reeston contract was a consequence of this appointment and was
encompassed by the provisions of the Turnkey contract. Accordingly, the
requirements of s 217 of the Constitution did not have to be complied with in the
award of the Reeston contract. It is likewise unnecessary to consider the answer of
the respondent to this argument. This was that the Turnkey contract was inchoate,
because it was subject to a condition precedent that a funding agreement be
concluded between the appellant and the Provincial Department of Human
Settlements. No funding agreement had been concluded, with the result that the
condition was not fulfilled and the contract did not come into being.

[27]  I turn to consider the appellant's appeal against the court a quo's dismissal of
the appellant's claim for provisional sentence. Before the court a quo, the
respondent’s sole ground of opposition to the provisional sentence claim of the
appellant was that the payment certificates prepared by the engineer and relied upon
by the appellant, were dependent upon his valid appointment in terms of a valid
underlying contract (the Reeston contract). This defence was upheld by the court a
quo and provisional sentence refused, but the conclusion reached in this appeal
renders the defence unsustainable. On appeal however a new defence was
advanced by the respondent. The respondent argues that not all of the payment
certificates relied upon by the appellant, support the claim for payment. Payment
certificates numbers 1, 2 and 3 attached to the summons, were issued in terms of the
Reeston contract, whereas payment certificate number 4 was issued in terms of the
Turnkey contract. It is common cause that the Turnkey contract did not form the basis
for the work performed by the appellant. Payment certificate number 4 was
accordingly invalid as the engineer issuing it did not have authority to do so, not
having been appointed under the Turnkey contract. Counsel were however agreed
that the appellant would have been entitled to provisional sentence in respect of
payment certificates 1, 2 and 3, but not in respect of payment certificate 4. The
enquiry was rendered moot because we were informed by both counsel that the
respondent had in the interim made a without prejudice payment to the appellant in
respect of the Reeston contract, in an amount in excess of R40 million. This payment
was based upon the extent to which the respondent calculated that it had been
unduly enriched by the appellant's performance. It was agreed between counsel that
it would no longer be permissible to grant provisional sentence against the
respondent, as the payment excussed these earlier claims. Counsel for the
respondent however conceded that the appellant would be entitled to the costs of the
application for provisional sentence.
[28]  The appellant in its heads of argument, sought an order for costs against the
respondent on the attorney and client scale, based upon the allegation that the
respondent had not provided an honest explanation for its delay in bringing the
application for review. In addition the application for the review and setting aside of

the Reeston contract was not in the best interests of either of the parties, or the
community, which is in desperate need of the housing to be provided by the
performance of the contract by the appellant. Counsel for the appellant did not
however advance this contention in argument. In my view a consideration of all of the
evidence does not justify the grant of a punitive costs order.
[29]  In the result the following order is made:
(a) The appeal succeeds with costs, such costs to include the costs of two counsel.
(b) The order of the court a quo is set aside and replaced with the following order:
In case number 5246/2015;
‘The defendant is ordered to pay the plaintiff's costs, such costs to include the costs
of two counsel where employed.’
In case number 5668/2015
‘The application is dismissed with costs, such costs to include the costs of two
counsel where employed.’

_________________________

K G B Swain

Judge of Appeal

Appearances:

For the Appellant:

G M Budlender SC (with M Schreuder)

Instructed by:
Vos Maree Inc c/o Wheeldon Rushmere &
Cole, Grahamstown

Symington & De Kok, Bloemfontein

For the Respondent:

R G Buchanan SC

Instructed by:

Neville Borman & Botha, Grahamstown

Bock & Van Es, 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

24 March 2017

STATUS

Immediate

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

Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality (894/2016)
[2017] ZASCA 23 (24 March 2017)

Media Statement

The SCA upheld an appeal against an order by the High Court which reviewed and
set aside the award of a contract by the respondent, the Buffalo City Metropolitan
Municipality to the appellant, Asla Construction (Pty) Ltd, on the ground that the
respondent had failed to comply with s 217 of the Constitution. The High Court also
dismissed the appellant's claim for provisional sentence, on the basis that the
engineers’ certificates relied upon by the appellant were invalid, based as they were
upon the invalid contract. The SCA held that the application by the respondent for a
review of the award of the contract in terms of s 7, 8 and 9 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) should not have been granted for several
reasons. The respondent had failed to seek an order in terms of s 9(2) of PAJA
extending the period within which the application could be brought, at the same time
as the application for review, and had failed to provide a full and reasonable
explanation for the delay, which far exceeded the period of 180 days stipulated in s 7
of PAJA. In addition, the High Court erred in deciding the merits of the review
application, before deciding whether condonation should be granted in terms of
PAJA. This precluded any finding that the application for condonation should be
refused on its merits, with the result that any unlawful award of the contract would be
’validated’ by the delay. In addition, the High Court regarded the breach of s 217 of
the Constitution as a complete bar to the ‘validation’ of the contract, contrary to the
principle that even unlawful administrative action may be rendered unassailable by
delay. The High Court also failed to properly consider the extent to which the
appellant had proceeded with the performance of the contract, with the ostensible
permission of the respondent and the resultant prejudice to the appellant in setting
the contract aside at that stage. The High Court also failed to properly consider the
nature and extent of the prejudice to be suffered by those persons who were in
desperate need of housing, to be provided by performance of the contract. In the
result, the award of the contract was ‘validated’, insofar as this may have been
necessary, by the undue delay of the respondent. The payment certificates relied
upon by the appellant, were accordingly valid.

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