South African Forestry Company SOC Ltd v Collins Sebola Financial Services (Pty) Ltd and Others

The judgment

The court's own file

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 2 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. 3 __________________________________________________________________ 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 4 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 5 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 6 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