THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 460/2022

In the matter between:

KUNENE RAMPALA INC.

APPELLANT
and
NORTH WEST PROVINCE DEPARTMENT
OF EDUCATION AND SPORT DEVELOPMENT
RESPONDENT
Neutral citation:
Kunene Rampala Inc. v North West Province Department of
Education and Sport and Development (460/2022) [2023] ZASCA 120 (15 September
2023)
Coram:
Mbatha, Mothle, Hughes and Matojane JJA and Mali AJA
Heard:
11 May 2023
Delivered:  15 September 2023
Summary: Public Procurement – validity of an addendum to the contract – whether
concluded in contravention of s 217 of the Constitution, the Public Finance
Management Act and the National Treasury Regulations – validity of setting aside of
contract without collateral challenge.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: North West Division, Mahikeng (Petersen J sitting as court of first
instance):
The appeal is dismissed with costs.

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Hughes JA (Mbatha, Mothle and Matojane JJA and Mali AJA concurring)

[1] This appeal concerns a dispute arising from an addendum to a service level
agreement duly concluded between the appellant, Kunene Rampala Inc. (KR Inc.), a
firm of attorneys and the North West Province, Department of Education and Sport
Development (the Department), the respondent. The appeal is with the leave of the
high court, the North West Division, Mahikeng (the high court).

[2] The facts that give rise to this appeal are largely common cause. On 28
September 2015 the Department invited tenders to provide services to conduct
evaluation, adjudication and supply chain management administrative services for the
provision and delivery of Learner Teacher Support Material (LTSM), under closed
tender EDU 04/15 NW. KR Inc. submitted a successful bid, and on 9 October 2015 the
Department and KR Inc. concluded a Service Level Agreement (SLA) with the
contracted price of R1 243 215. 60.

[3] According to the SLA, the duration of the contract was for a period of 12 months.
The terms of reference for tender EDU 04/15 NW, highlighted the scope of services to
be provided as follows:
‘(a) The handling of the closure of the tender.
(b) The recording of the receipt of the tender documents.
(c) The administering of the tender documents (i.e. sifting).
(d) Performing evaluation of the tender (including site inspections).
(e) The actual adjudication of the qualifying providers.
(f) The recommendations of the successful bids to the Accounting Officer.
(g) Prepare bid evaluation report and Bid adjudication report.
(h) Recording of all proceedings in the Bid Evaluation committee meetings.’

[4] On 12 October 2015, just three days after the SLA was concluded, and before
KR Inc. conducted any work, the parties concluded an addendum to the SLA without
further procurement processes being followed. The heading of the addendum thus
reads:
‘BID NUMBER – EDU 01/05 NW: PROVISION AND DELIVERY OF STATIONERY TO
DISTRIBUTORS
WITHIN
THE
DEPARTMENT
OF
EDUCATION
AND
SPORT
DEVELOPMENT IN THE NORTH WEST PROVINCE FOR 3 YEARS.’
Coupled with the above, the addendum specified its purpose under the definitions as:
‘“Addendum” – this addendum regarding the appointment of KR Inc to render Supply Chain
Management Administration for the provision and delivery of stationery to distributors relating
to tender number: EDU 01/15(NW).’

[5] At this juncture, it is necessary to mention that the aforesaid bid EDU 01/15 NW,
in the preceding paragraph, had gone out for tender under bid EDU 34/13 NW in
November 2013. The tender award was reviewed and set aside in its entirety on 18
September 2014 by the high court, before Kgoele J, who declared that the tender
award was improper, irregular, unlawful and invalid. The grounds for the declaration of
invalidity are not necessary for this judgment. The Department was ordered to
commence the tender award process de novo. The invitation in respect of bid EDU
01/15 NW went out for tender just ten days after the court order of Kgoele J. It is the
substance of this bid that formed the addendum which was concluded between the
parties.

[6] Notably the following appears in the preamble of the addendum:
‘(d) AND FURTHER WHEREAS KR INC. professed to have the requisite skills to execute the
services envisaged in the award of tender 01/15 and professes to have the appropriate,
reputable and the necessary expertise to undertake and execute supply chain management
administration services and oversight relating to delivery of stationery to distributors within the
Department of Education and Sport Development in the North West Province;
….
(f) AND FURTHER WHEREAS it is the intention of the parties to align this addendum with the
clause 4.2 of the service level agreement and the letter of appointment (engagement).’
Clause 4.2 of the SLA merely states that ‘[t]he Services will conform in all material respects to
its service description as set out in the …Engagement Letter.’ The latter purely relays that the
letter serves as a binding contract, however, ‘no services must be rendered without obtaining
an official purchase order.’

[7] Pertinently, the addendum spelt out the task to be undertaken as the provision
and delivery of stationery to the distributors, bearing in mind that in terms of the SLA
the appellant was tasked to evaluate, adjudicate and identify the service provider, to
supply chain management services, and to conduct the provision and distribution
function. Further, the lifespan of the work under the addendum was ‘for a period of 3
years or any such extended period’. Whilst, the lifespan of the SLA was only 12
months.

[8] The effect of the addendum was that: KR Inc. under the SLA was to provide
services to conduct evaluation, adjudication and supply chain management
administrative services for the provision and delivery of LTSM; having provided such
service under the addendum, KR Inc. would be rendering the services for which they
had evaluated and adjudicated upon, in that, they would be providing and delivering
the stationery to distributors. This in turn resulted in the contract of KR Inc. being
increased by three years. In addition, the scope of work to be conducted was
increased. The net effect was that the fees due were also increased. Consequently,
the appellant was able to charge an amount equivalent to 15 % of the budget spent by
the respondent on the procurement of services envisaged. According to the appellant,
as per their claim against the respondent, the fee due to them was an amount of R46
650 000.00.

[9] KR Inc. performed and completed its duties in terms of the SLA signed on 9
October 2015 for bid EDU 04/15 NW and was duly paid therefore. On 23 December
2016, pursuant to the conclusion of the addendum, KR Inc. issued its invoice to the
Department. On 15 March 2017, KR Inc. gave notice of its intention to institute legal
proceedings in terms of s 3 of the Institution of Legal Proceedings against Certain
Organs of State Act.1

[10] On 22 March 2017, the Department wrote a letter of cancellation to KR Inc.
advising KR Inc. that it had come to the Department’s attention that the addendum was
invalid as it ‘encompassed new scope of work as well as [the] new terms and conditions
different from the tender you responded to and [were] appointed for.’ The Department
sought that KR Inc. give reasons within 14 days, as to why the addendum should not
be terminated. According to KR Inc., this letter of cancellation repudiated the
addendum, which it so accepted. Consequently, on 1 November 2017, KR Inc. served
a summons for damages on the Department for repudiating the contract.

[11] KR Inc.’s particulars of claim, in relation to the addendum, alleges that it was
concluded in order ‘to secure the proper and efficient distribution of LTSM throughout
the province before the start of the 2016 school year.’ Further, that the services set out
in the addendum ‘flowed from’ the tender EDU 04/15 NW which had been awarded to
KR Inc. In addition hereto, KR Inc. pleaded in the alternative that through the
addendum, a single source procurement arose which dealt with additional work that
could not be separated from the work assigned under the SLA without great
inconvenience. This was necessitated by the emergency situation that the Province
found itself in, to deliver the LTSM to the schools before the commencement of the
2016 school year.

[12] The Departments case was simply that the addendum was concluded without
complying with the procurement prescripts and as such, it sought that the contract be
declared unlawful and invalid. It specifically pleaded that the addendum was concluded
in contravention of s 217 of the Constitution of the Republic of South Africa2 (the

1 Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.
2 The Constitution of the Republic of South Africa, 108 of 1996.

Constitution), Regulation 16A of the Treasury Regulations issued in terms of the Public
Finance Management Act3 (PFMA) and the National Treasury Instruction Supply Chain
Management Instruction Notes, in that, no bidding process was undertaken. The
respondent asserted in its plea that the addendum was in fact concluded before any
work had been done in respect of the SLA under bid EDU 04/15 NW and as such,
denied that the addendum was concluded to avert an ‘emergency situation in the
Province’… ‘in order to secure the proper and efficient distribution of the LTSM
throughout the province before the start of the 2016 school year’.

[13] The matter came before Petersen J in the court a quo who dismissed the claim
with costs. The high court found that the appointment of KR Inc. as the suitable service
provider came about by way of a mere ‘swoop of the pen’ with a total disregard to fair,
equitable and transparent processes as is envisaged by s 217 of the Constitution. In
addition, it concluded that the addendum extended ‘the SLA without an open tender
process, was clearly contrary to the Treasury’s Instruction Note on Enhancing
Compliance Monitoring and Improving Transparency and Accountability in Supply
Chain Management.’ Placing reliance on Gobela Consulting CC v Makhado
Municipality4 and Valor IT v Premier, North West Province and Others5 (Valor IT), the
high court also found that on the evidence before it, the Department was entitled to
challenge the validity and lawfulness of the addendum in its plea, without seeking to
review and set it aside. It accordingly dismissed KR Inc.’s claim as the contract was
concluded in breach of the applicable procedure prescripts and was thus invalid and
unlawful.

[14] The crisp question in this appeal is whether the high court was correct in finding
that the contract was invalid, unlawful and in breach of the applicable procedure
prescripts, in the absence of a counter-application seeking a review and setting aside
of the addendum.

[15] The starting point is s 217 of the Constitution. Section 217 provides as follows:

3 Public Finance Management Act 1 of 1999.
4 Gobela Consulting CC v Makhado Municipality (910/19) [2020] ZASCA 180.
5 Valor IT v Premier, North West Province and Others [2021] (1) SA 42 (SCA).

‘(1) When an organ of state in the national, provincial or local sphere of government, or any
other institution identified in national legislation, contracts for goods or services, it must do so
in accordance with a system which is fair, equitable, transparent, competitive and cost-
effective.
(2) Subsection (1) does not prevent the organs of state or institutions referred to in that
subsection from implementing a procurement policy providing for –
(a) categories of preference in allocation of contracts; and
(b) the protection and advancement of persons, or categories of persons, disadvantaged by
unfair discrimination.
(3) National legislation must prescribe a framework within which the policy referred to in section
(2) must be implemented.’

[16] In Valor IT, this Court was seized with the failure to comply with the public
procurement processes as is required by s 217 of the Constitution. The importance of
s 217 was eloquently enunciated by Plasket JA:
‘Section 217 of the Constitution requires organs of state such as the Department, when it
procures goods and services, to do so in terms of a system that is ‘fair, equitable, transparent,
competitive and cost-effective’. Its purpose is to prevent patronage and corruption, on the one
hand, and to promote fairness and impartiality in the award of public procurement contracts,
on the other. In order to do so, statutes, such as the Public Finance Management Act 1 of 1999
(the PFMA), subordinate legislation made under the PFMA, such as the Treasury Regulations,
and supply chain management policies that have to be applied by organs of state, all give
effect to s 217.
In Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer,
South African Social Security Agency and Others, Froneman J said of this legal framework
that compliance with it was required for a valid procurement process and its components were
not mere ‘internal prescripts’ that could be disregarded at whim. The consequence of non-
compliance is clear: in Municipal Manager: Qaukeni Local Municipality and Another v FV
General Trading CC, Leach JA held that a public procurement contract concluded in breach of
the legal provisions ‘designed to ensure a transparent, cost-effective and competitive tendering
process in the public interest, is invalid and will not be enforced’.’6

[17] Turning back to the facts of this case, by the addition of the addendum, the
transaction value was way over the threshold of R500 000.00. As such, an open tender

6 Ibid paras 40 – 41.

process was mandatory in terms of clauses 3.4.1 and 3.4.2 of the Treasury Practice
Note.7 By adopting the addendum on the basis of the transaction value alone
amounted to flouting with the requisite public procurement prescripts and non-
compliance thereof. No open-tender process was adopted, as such, there were no
competitors against whom KR Inc. could compete. There is also no further alternative
pricing or an alternative service provider. In such circumstances, the conclusion of the
addendum did not comply with s 217 of the Constitution. This culminated in a process
adopted for the appointment of KR Inc. being ‘a system which was [NOT] fair,
equitable, transparent, competitive and cost-effective’ as required by s 217 of the
Constitution. Thus, at variance with the principles of legality, since the Department had
no authority to conclude the addendum in the first place.

[18] Much dispute was made by KR Inc. that the supply chain management services,
which are catered for in the addendum, in fact formed part of the services it had to
perform in terms of SLA, and ‘the conclusion of the addendum [merely] flowed from
the award’ of tender EDU 04/15 NW. This is clearly not correct. In terms of the SLA,
KR Inc. merely had to appoint the service provider and the supply chain management
service, in respect of the LTSM. However, the addendum now sought that KR Inc.
execute, as the supply chain management service would, the provision and delivery of
the stationery in terms of the LTSM. Hence, in respect of the addendum there was an
increase in the scope of work to be conducted; an increase in the duration period for
the work to have been performed; and naturally an increase in the fees to be paid to
KR Inc.

[19] KR Inc. contended that the addendum was valid as it was a single source
procurement, which arose as a result of an emergency situation as ‘the provision and
delivery of the LTSM had to take place before the commencement of the 2016 school
year’. From the facts of this case, it is clear that there is no evidence that the
Department sought to conclude the addendum to avert an emergency situation, as was
the case in Valor IT ‘that no urgency or emergency circumstances justified a departure
from the prescript’. In these circumstances, since there has been non-compliance with

7 Treasury Practice Note No 8 of 2007/2008.

the public procurement prescript, the conclusion of the addendum is unlawful and
invalid.

[20] I now turn to address the issue of a collateral and reactive challenge. It is noted
that KR Inc. appreciates that which was enunciated in Gobela in respect of collateral
challenges. However, it argues that the high court should not have applied the
principles of Gobela in this matter, as the facts of that case are distinguishable from
this case. It is well settled now that if justice is to be served, a court is entitled to declare
a contract invalid and unlawful, even if a collateral challenge is absent, in instances of
a review of an invalid and unlawful contract. Importantly, it would depend on the facts
of each case, in order to ensure that justice is served.

[21] In Gobela, likewise in this case, the court was seized with the question of
whether a declaration of invalidity and unlawfulness could be pronounced without a
collateral challenge being raised to review and set aside the offensive contract.
Molemela JA writing for this Court summarised the position as follows:
‘The law relating to collateral challenges was settled by the Constitutional Court in Merafong
City Local Municipality v AngloGold Ashanti Limited8 (Merafong). Having surveyed the pre-
constitutional case-law, the majority judgment found that South African law has always allowed
a degree of flexibility in reactive challenges to administrative action. Having considered the
impact of the Constitution on that body of law, it re-asserted that the import of Oudekraal was
that the government institution cannot simply ignore an apparently binding ruling or decision
on the basis that it was patently unlawful, as that would undermine the rule of law; rather, it
has to test the validity of that decision in appropriate proceedings. The decision remains
binding until set aside. That court expressed some guidelines for assessing the competence
of a collateral challenge. With specific reference to Kirland, it stated as follows:
“But it is important to note what Kirland did not do. It did not fossilise possibly unlawful – and
constitutionally invalid – administrative action as indefinitely effective. It expressly recognised
that the Oudekraal principle puts a provisional brake on determining invalidity. The brake is
imposed for rule of law reasons and for good administration. It does not bring the process to an
irreversible halt. What it requires is that the allegedly unlawful action be challenged by the right
actor in the right proceedings. Until that happens, for rule of law reasons, the decision stands.

8 Merafong City Local Municipality v AngloGold Ashanti Limited (CCT106/15) [2016] ZACC 35; 2017
(2) SA 211 (CC).

Oudekraal and Kirland did not impose an absolute obligation on private citizens to take the
initiative to strike down invalid administrative decisions affecting them. Both decisions
recognised that there may be occasions where an administrative decision or ruling should be
treated as invalid even though no action has been taken to strike it down. Neither decision
expressly circumscribed the circumstances in which an administrative decision could be
attacked reactively as invalid. As important, they did not imply or entail that, unless they bring
court proceedings to challenge an administrative decision, public authorities are obliged to
accept it as valid. And neither imposed an absolute duty of proactivity on public authorities. It all
depends on the circumstances.
. . . .
Against this background, the question is whether, when AngloGold sought an order enforcing
the Minister’s decision, Merafong was entitled to react by raising the invalidity of her ruling as a
defence.
. . . .
A reactive challenge should be available where justice requires it to be. That will depend, in
each case, on the facts. (Emphasis added.) ”’ 9

[22] In this case, the addendum is such that the invalidity thereof cries out that justice
be served. Before the period of the addendum came to an end, in fact after a year, KR
Inc. issued out an invoice seeking payment of R46 million without the work being
complete; work which was calculated to be done for the entire three year period of the
addendum. It would not be in the interest of justice to allow for this fruitless and wasteful
expenditure.

[23] Further, the invalidity of the addendum was raised in the Department’s
cancellation letter and in its plea; thus KR Inc. was well aware of the case it was to
meet and it would therefore, be an injustice to say the lack of a counter-application
precludes the Department from seeking a declaration of invalidity and unlawfulness.
The Department pleaded non-compliance with s 217 of the Constitution, contravention
of Regulation 16A of the Treasury Regulations issued in terms of the PFMA and
contravention of the National Treasury Instruction Supply Chain Management
Instruction Notes. The high court in its judgment mentioned that, the Department, even
in the absence of a collateral challenge, had raised the validity and lawfulness of the
addendum in the pleadings.

9 Gobela op cit fn 4 at para 18.

[24] Yet, another consideration by the high court, was the manner in which the
addendum came about, which the Department carefully pleaded that it was entered
into three days after the SLA was concluded. No work, whatsoever, had been
undertaken or conducted by KR Inc. at that stage in terms of the SLA. Thus, the
efficiency of KR Inc. being best to manage the task set out in the addendum could not
have been established by then. This dispels the contention by KR Inc. that the
addendum was concluded ‘in order to serve the proper and efficient distribution of
LTSM throughout the province before the start of the 2016 school year’ and that an
emergency situation had arisen.

[25] Lastly, the court a quo was correct in entertaining the collateral challenge of the
Department, and declaring the addendum invalid and unlawful, for non-compliance
with the prescripts of the public procurement processes. This is clearly contrary to what
s 217 of the Constitution seeks to prevent, in respect of organs of state, like the
Department in this case. Therefore, the declaration of invalidity and unlawfulness of
the addendum by the high court was warranted and justice required that the collateral
challenge be entertained.

[26] As a last resort, KR Inc. sought that we grant a just and equitable remedy under
s 172(1)(b) of the Constitution, as this Court did in Greater Tzaneen Municipality v
Bravospan.10 In essence, KR Inc. wanted compensation for the period that it had
rendered the relevant services in terms of the addendum, as a just and equitable
remedy under s172 (1)(b). The difficulty that it encounters is that, this sort of remedy
is normally sought whilst in the same proceedings. In this instance, the relief sought
was not sought in the high court. In addition, the facts relevant to make a determination
or order as is contemplated in s 172(1)(b) are not before us. Importantly, the
Department would be prejudiced, as the relief and remedy sought at this late stage
was neither raised in the papers nor was it before the high court, but merely raised
from the bar.

10 Greater Tzaneen Municipality v Bravospan 252 CC (428/2021) [2022] ZASCA 155.

[27] In the circumstance of this case, the addendum was unlawful and invalid and
justice requires that the impugned addendum be declared as such. As regards to costs,
there is no reason to depart from the general rule that costs follow the result.

[28] In the result:
The appeal is dismissed with costs.

___________________
W HUGHES
JUDGE OF APPEAL

Appearances

For the Appellant:

Mokhare SC
Instructed by:

Kunene Rampala Incorporated,

Braamfontein

Blair Attorneys, Bloemfontein

For the Respondent:
X Soni SC
Instructed by:
M E Attorneys and Associates, Mahikeng
Bezuidenhouts Incorporated, 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:

15 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
Kunene Rampala Inc. v North West Province Department of Education and Sport and Development
(460/2022) [2023] ZASCA 120 (15 September 2023)
Today the SCA dismissed with costs, the appeal against the decision of the North West Division of the
High Court of South Africa, Mahikeng. (The high court).
This appeal concerned a dispute arising from an addendum to a service level agreement duly concluded
between the appellant, Kunene Rampala Inc.(KR Inc.), a firm of attorneys and the North West Province,
Department of Education and Sport Development (the Department), the respondent.
The facts that gave rise to this appeal are the following: on 28 September 2015 the Department invited
tenders to provide services to conduct evaluation, adjudication and supply chain management
administrative services for the provision and delivery of Learner Teacher Support Material (LTSM),
under closed tender EDU 04/15 NW. KR Inc. submitted a successful bid, and on 9 October 2015 the
Department and KR Inc. concluded a Service Level Agreement (SLA) with the contracted price of R1
243 215. 60. On 12 October 2015, just three days after the SLA was concluded, and before KR Inc.
conducted any work, the parties concluded an addendum to the SLA without further procurement
processes being followed. Pertinently, the addendum spelt out the task to be undertaken as the
provision and delivery of stationery to the distributors, bearing in mind that in terms of the SLA KR Inc.
was tasked to evaluate, adjudicate and identify the service provider, to supply chain management
services, and to conduct the provision and distribution function. The lifespan of the work under the
addendum was for a period of 3 years. Whilst, the lifespan of the SLA was only 12 months. As a result
of the addendum the scope of work to be conducted was increased. The net effect was that the fees
due were also increased. KR Inc. performed and completed its duties in terms of the SLA and was duly
paid therefore. On 23 December 2016, pursuant to the conclusion of the addendum, KR Inc. issued its
invoice to the Department but never received any payment which resulted in KR Inc. giving notice of its
intention to institute legal proceedings against the Department.
The matter was brought before the high court, and KR Inc. argued that the addendum was concluded
in order to secure the proper and efficient distribution of LTSM throughout the province before the start
of the 2016 school year. Further, that the services set out in the addendum flowed from the tender EDU
04/15 NW which had been awarded to KR Inc. In addition hereto, KR Inc. pleaded in the alternative that
through the addendum, a single source procurement arose which dealt with additional work that could
not be separated from the work assigned under the SLA without great inconvenience. This was
necessitated by the emergency situation that the province found itself in, to deliver the LTSM to the
schools before the commencement of the 2016 school year. The Department’s case, on the contrary,
was simply that the addendum was concluded without complying with the procurement prescripts and
as such, it sought that the contract be declared unlawful and invalid. It specifically pleaded that the
addendum was concluded in contravention of s 217 of the Constitution, Regulation 16A of the Treasury
Regulations issued in terms of the Public Finance Management Act (PFMA) and the National Treasury
Instruction Supply Chain Management Instruction Notes, in that, no bidding process was undertaken.

The high court, as per Peterson J, dismissed KR Inc.’s claim with costs. The high court found that the
appointment of KR Inc. as the suitable service provider came about by way of a mere ‘swoop of the
pen’ with a total disregard to fair, equitable and transparent processes as is envisaged by s 217 of the
Constitution. In addition, it concluded that the addendum extended the SLA without an open tender
process, was clearly contrary to the Treasury’s Instruction Note on Enhancing Compliance Monitoring
and Improving Transparency and Accountability in Supply Chain Management. The high court also
found that on the evidence before it, the Department was entitled to challenge the validity and
lawfulness of the addendum in its plea, without seeking to review and set it aside. It accordingly
dismissed KR Inc.’s claim as the contract was concluded in breach of the applicable procedure
prescripts and was thus invalid and unlawful.
With leave of the high court, KR Inc. brought the matter before this Court to determine whether the high
court was correct in finding that the contract was invalid, unlawful and in breach of the applicable
procedural prescripts, in the absence of a counter-application seeking a review and setting aside of the
addendum.
The SCA agreed with the high court and found that the conclusion of the addendum did not comply with
s 217 of the Constitution as the process applied to appoint KR Inc. was not fair, equitable, transparent,
competitive and cost-effective as required by the section. The SCA further held that such non-
compliance with s 217 was at variance with the principles of legality, since the Department had no
authority to conclude the addendum in the first place. The Court also found that there was no evidence
supporting KR Inc.’s contention that the addendum was valid as it was a single source procurement,
which arose as a result of an emergency situation as the provision and delivery of the LTSM had to take
place before the commencement of the 2016 school year. With regard to the issue of a collateral and
reactive challenge, the SCA found that the court a quo was correct in entertaining the collateral
challenge of the Department, and declaring the addendum invalid and unlawful, for non-compliance
with the prescripts of the public procurement processes. This, according to the SCA was clearly contrary
to what s 217 of the Constitution sought to prevent, in respect of organs of state, like the Department in
this case. Therefore, the declaration of invalidity and unlawfulness of the addendum by the high court
was warranted and justice required that the collateral challenge be entertained and thus, the appeal
was dismissed with costs.

~~~~ends~~~~