MEC for Department of Public Works, Roads and Transport, Mpumalanga v I4 Power Technology (Pty) Ltd (35608/2022) [2025] ZAGPPHC 1381 (29 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1381 | Noteup | LawCite sino index ## MEC for Department of Public Works, Roads and Transport, Mpumalanga v I4 Power Technology (Pty) Ltd (35608/2022) [2025] ZAGPPHC 1381 (29 December 2025) MEC for Department of Public Works, Roads and Transport, Mpumalanga v I4 Power Technology (Pty) Ltd (35608/2022) [2025] ZAGPPHC 1381 (29 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1381.html sino date 29 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 35608/2022 (1) REPORTABLE: NO (2) OF INTEREST TO THE JUDGES: NO (3) REVISED. DATE: 29 Dec 2025 SIGNATURE: In the matter between: MEC FOR DEPARTMENT OF PUBLIC WORKS, ROADS AND TRANSPORT, MPUMALANGA                         Plaintiff and I4 POWER TECHNOLOGY (PTY) LTD                                    Defendant JUDGMENT This judgment was handed down electronically by circulation to the parties’ legal representatives by email and uploading it to the electronic file of this matter on Caselines. The date and time of hand-down is deemed to be 10:00 on 29 December 2025. TEFFO, J: Introduction [1]        Before me is a special plea taken by the defendant, I4 Power Technology (Pty) Ltd (“ I4 Power ”) against the particulars of claim of the plaintiff, the Member of the Executive Council for the Department of Public Works, Roads and Transport, Mpumalanga (“ the Department ”) on the ground that this Court lacks jurisdiction to hear the action in this matter. There is also an application by Absa for leave to intervene as the second defendant in the action between the Department and I4 Power (“ the intervention application ”). The intervention application is only opposed by the Department. [2]        The second special plea that related to the non-joinder of the accounting officer of the Department, was abandoned. Background [3]        On or about 4 July 2022, the Department instituted an action out of this Court for an order declaring the contract between it and I4 Power void ab initio . [4]        The action is premised on allegations that the tender process which resulted in the award of the tender to I4 Power, was vitiated by misrepresentation. [5]        The history of this matter is the following: 5.1       During 2014 the Department invited tenders from the prospective service providers for the installation of energy saving measures at its immovable properties. In 2015 I4 Power submitted a tender bid in response to the invitation. 5.2       An evaluation process was conducted, and the tender was awarded to I4 Power. 5.3       Subsequently, in March 2016 I4 Power and the Department concluded a written agreement in terms of which I4 Power would install the energy-saving measures at the Department’s immovable properties. 5.4       I4 Power continued to provide the services. Thereafter, there were various disputes between the parties and in September 2019, the Department terminated the agreement. 5.5       The disputes were referred to arbitration which found that the Department’s purported termination of the agreement was unlawful. 5.6       The Department appealed the arbitrator’s decision. However, the arbitrator’s decision was upheld on appeal by an Arbitration Appeal Tribunal before three retired judges. 5.7       Following the institution of an action in this Court, the Department launched an application to stay the arbitration proceedings pending the outcome of the action. 5.8       The issues that remained for determination before the arbitrator which related to the quantification of I4 Power’s claims against the Department for services rendered and damages, were postponed pending the outcome of the action. 5.9       After the hearing of the stay application, and before judgment, the Department sought to amend its particulars of claim. The particulars of claim were amended on 13 August 2024 whereafter I4 Power filed an amended plea in which the special plea was taken. 5.10    The application for the stay of the arbitration was granted pending the outcome of the action instituted in this Court. The special plea [6]        In the special plea I4 Power contends that this Court lacks jurisdiction to hear the action instituted by the Department in that the decision to award the tender contract sought to be reviewed and set aside, was taken at the principal place of business of the Department situated in Mbombela, Mpumalanga Province. [7]        It further contends that in so far as the Department seeks an order reviewing and setting aside the award of the tender contract, such an order is in law only competent in terms of the principle of legality when one has regard to what is pleaded in paragraph 10 to 14 of the amended particulars of claim. [8]        I4 Power claims that the plaintiff does not make any allegations in its particulars of claim upon which it bases this Court’s jurisdiction to grant the relief sought. The parties’ submissions [9]        Mr Epstein SC for I4 Power attacked the Department’s election to institute its action in this Court on the basis that I4 Power’s principal place of business as well as its registered address are situated within the jurisdiction of this Court. He submitted that the only court that has jurisdiction to entertain this matter is the High Court in Mpumalanga. He asserted that the tender was called for in Mpumalanga, the decision to award the tender contract was taken in Mpumalanga, the contract was concluded in Mpumalanga, and the service was to be rendered in Mpumalanga. [10]      Mr Epstein SC placed reliance on the case of Gijima [1] and submitted that I4 Power is not a defendant in this matter. It is only cited in this matter because it has an interest. [11]      The following paragraphs of the judgment of Gijima [2] were referred to: “ [14] SITA maintained that there is nothing in the Constitution nor PAJA suggesting that the right to lawful administrative action is exercisable by an organ of state by itself and against itself. Put differently, it is inconceivable that an organ of state can assert the right to lawful administrative action against itself but then complain to itself that it has violated its own right to administrative action and seek to invoke PAJA against itself. By way of illustration and with reference to s5 of PAJA, SITA argued that it is difficult to comprehend how an organ of state can request from itself reasons for its own action. [27]      Does s 33 of the Constitution, which is at the centre of the innovation, shed a different light to that gleaned from this background? This section is primarily concerned with ‘everyone’s’ right to procedurally fair, reasonable and lawful administrative action. Is ‘everyone’ in this section so wide as to extend to the State? We think not. Section 33(3)(b) provides that national legislation, which in terms of s 33(3) has to give effect to s 33 rights, must impose a duty on the state to give effect to the rights in s 33(1) and (2). It seems inconsonant that the State can be both the beneficiary of the rights and the bearer of the corresponding obligation that it intended to give effect to the rights. This must indeed, be an indication that only private persons enjoy rights under s 33. [28]      Let us look more closely at the rights themselves. We have mentioned the one created by s 33(1), which is the right to lawful, reasonable and procedurally fair administrative action. If the state holds this right, who is the correlative duty-bearer? Put differently, from whom would an organ of state whose own decision is the subject of its concern expect this lawful, reasonable and procedurally fair administrative action? From itself? That simply cannot be. Section 33(2) affords a person whose rights have been affected by administrative action, a right to be given written reasons. Surely, it could never have been the object of this section that an organ of State should like private persons also enjoy a right to be furnished, by itself, written reasons for administrative action taken by itself. What purpose would a right of that serve? None whatsoever. [37]  … The point of the matter is that no choice is available to an organ of State wanting to have its own decision reviewed; PAJA is simply not available to it. That is the conclusion we have been led to by an interpretation of, primarily, s 33 of the Constitution and, secondarily, PAJA itself. Thus, there is no basis for suggesting that an organ of State seeking a review of its own decision may simply choose to avoid review under PAJA for reasons of expediency.” [12]      Counsel for I4 Power further placed reliance on the judgment of MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [3] where the Court had this to say: “ [64] Can a decision by a state official, communicated to the subject, and in reliance on which it acts, be set aside by a court even when government has not applied (or counter-applied) for the court to do so? Differently put, can a court exempt government from the burdens and duties of a proper review application and deprive the subject of the protections these provide, when it seeks to disregard one of its own officials’ decisions? That is the question the judgment of Jafta J (main judgment) answers. The answer it gives is yes. I disagree. Even where the decision is defective as the evidence here suggests – government should generally not be exempt from the forms and processes of review. It should be held to the pain and duty of proper process. It must apply formally for a court to set aside the defective decision, so that the court can properly consider its effects on those subject to it. [65] … Generally, this means that government must apply formally to set aside the decision. Once the subject has relied on the decision, government cannot, barring specific statutory authority, simply ignore what it has done. The decision, despite being defective, may have consequences that make it undesirable or even impossible to set it aside. That demands a proper process, in which all factors for and against are properly weighed. [103] The fundamental notion – that official conduct that is vulnerable to challenge may have legal consequences and may not be ignored until properly set aside – springs deeply from the rule of law. The courts alone and not public officials are the arbiters of legality. As Khampepe J stated in Welkom, ‘the rule of law does not permit an organ of state to reach what may turn out to be a correct outcome by any means. On the contrary, the rule of law obliges an organ of state to use the correct legal process. For a public official to ignore irregular administrative action on the basis that it is a nullity amounts to self-help. And it invites a vortex of uncertainty, unpredictability and irrationality. The clarity and certainty of governmental conduct, on which we rely in organising our lives, would be imperilled if irregular or invalid administrative acts could be ignored because officials consider them invalid’.” [13]      Mr Epstein SC further submitted that the Department alleges that the tender awarded to I4 Power, was wrongly awarded. It seeks a relief to set aside the decision to award the tender and the contract that was concluded after the award of the tender. The Department is seeking a self-review of its own decision. The complaint is therefore directed to itself and not at I4 Power. It, in fact, seeks a claim against itself. The Department joined I4 Power in the action because I4 Power’s rights may well be affected by the relief it seeks against itself. The basis for joining I4 Power in the action, does not, however, confer jurisdiction of this Court. [14]      In addition, he submitted that because the Department alleges that the tender was wrongly awarded to I4 Power, it cannot leave that decision. It must set it aside. It must come to court and say it has made a wrong decision; it wants to set it aside. That is almost an ex parte application and there are interested parties who include amongst them, those who were awarded the tender and those who were not. [15]      A further submission was made that the consequences of this Court exercising jurisdiction when it does not have such jurisdiction, are dire. In this regard reference was made to the decision in Communication Workers Union and Another v Telkom SA Ltd and Another [4] , where the Court had this to say: “ [a] court must have jurisdiction for its judgment and/or order to be valid. If the court does not have jurisdiction, its judgment and/or its order is a nullity.” [16]      In response to the above submissions, Mr Van der Merwe SC for the Department submitted that he has never seen the plaintiff suing the plaintiff. He argued that the Department applied to set aside a contract on which I4 Power relies. This, according to him, could never have been an ex parte application. He submitted that the matter in casu involves a contract binding on the Department which it wants to set aside on the grounds of fraud which renders it unconstitutional. The relief is therefore against I4 Power who relies on the contract. [17]      In support of his argument, Mr Van der Merwe SC relied on what the court had to say in Tasima : [5] “ [135] What served before the Supreme Court of Appeal was an appeal against the decision of Hughes J in the High Court. The Supreme Court of Appeal found that the High Court had erred and reversed its findings. That decision is now on appeal before us. The Department’s defence to the main application is founded on the success of its counterapplication in the High Court. The counterapplication consists principally of a reactive challenge to the 12 May 2010 extension of the contract between the Department and Tasima on grounds of illegality …” [18]      He argued that what happened in Tasima [6] is similar to what happened in the present matter in that the Department was faced with reliance on a contract and raised a collateral or a reactive challenge. He explained that this is a defence raised which must also be coupled with a counterapplication or counterclaim to set aside the contract. [19]      Regarding the Gijima judgment [7] , Mr Van der Merwe SC submitted that the judgment, in fact makes it clear that it is absurd for a party to claim against itself and that was part of the reason why PAJA is not applicable to a self-review. He also submitted that nothing in a self-review is a claim against the state entity that concluded a contract. It remains a claim to set aside the contract on which another party relies. He distinguished the Gijima judgment from the present facts in that in the matter in casu the Department is not complaining that its right to administer justice has been violated. That is the reason why PAJA is not applicable and that is why courts say it is ridiculous to think that the state can be protected against itself. [20]      Counsel for the Department further submitted that from the onset in the pleadings the Department relied on section 217 of the Constitution [8] which requires that procurement must comply with certain requirements and section 172(1)(b) of the Constitution [9] which authorises the court to set aside the decision not taken in accordance with the provisions of section 217 [10] . He argued that one cannot just look at the prayers and conclude that it is an ordinary matter based on fraud. He submitted that the cause of action has never changed when the Department amended its particulars of claim and that is the reason why in the Department’s heads of argument there is a submission that I4 Power must be taken to have consented to the jurisdiction of this Court. [21]      Mr Van der Merwe SC also submitted that nothing in the Constitution or any Act prescribes that the state must sue where the decision was taken. All what the Constitution does is it defines which court will have the power to decide constitutional matters such as this. It grants the High Court jurisdiction to hear these matters. [22]      Moreover, he submitted that nothing prevents the state from submitting to the jurisdiction of this Court and by issuing summons out of this Court where the defendant is, the Department has submitted to that jurisdiction, and it was accepted by I4 Power. I was referred in this regard to the judgment of TMT Services & Supplies (Pty) Ltd v MEC, Department of Transport, KwaZulu-Natal and Others [11] . [23]      Further submissions made in the Department’s heads of argument are that the claims for the orders reviewing and setting aside the award of the tender to I4 Power and the contract ab initio, and for costs are all claims against I4 Power and there is no claim against the Department. Moreover, so it was submitted, I4 Power is a necessary party to the action proceedings. It was not merely cited because it may possibly have an interest in the outcome of the matter. [24]      Furthermore, it was submitted that since summons was served, I4 Power never complained about lack of jurisdiction of this Court despite the allegations made in the original particulars of claim, instead it participated in the action. I4 Power has therefore accepted and consented to the jurisdiction of this Court. It cannot now belatedly raise jurisdiction. Its contention that the Department’s claim has changed when the Department amended its particulars of claim in December 2023 is misplaced. The issues for determination [25]      Whether the action for review and setting aside of the tender and the subsequent contract is in law a claim by the Department for self-review with I4 Power being joined only because it may have an interest in the outcome of the action. [26]      Whether on the facts of this matter, the Department was entitled to issue summons in this Court, or whether the only court with jurisdiction is the court that has jurisdiction over the area where the decision to award the tender was taken and where the contract was concluded being the High Court in Mpumalanga. [27]      Whether I4 Power submitted to the jurisdiction of this Court. Discussion Is the action a self-review by the Department with I4 Power being joined only because it may have an interest in the outcome of the action [28]      The Department seeks to review and set aside its own decision of awarding a tender contract to I4 Power and the subsequent contract entered into between the parties void ab initio in terms of section 172(1)(b) of the Constitution on the ground that the procurement process which led to the award of the tender to I4 Power was tainted by fraud on the part of I4 Power. The allegations of fraud have been pleaded in the particulars of claim. [29]      It is common cause between the parties that the Department seeks a self-review of its own decision. I have a problem with Mr Epstein’s submission that because the complaint that the Department relies upon for the relief sought, is directed to it, the Department therefore seeks a claim against itself. Furthermore, that the Department joined I4 Power in the action because I4 Power’s rights may well be affected by the relief the Department seeks against itself. [30]      It cannot be correct that I4 Power has been joined in the action because it may be affected by the decision the Department seeks in this Court and neither can this action be equated to an ex parte application. I4 Power was awarded the tender by the Department and as a result thereof a contract, which is currently binding between the parties until reviewed and set aside, was concluded. There can therefore be no doubt that the rights of I4 Power will surely be affected by the relief that the Department seeks. I4 Power is therefore a necessary party to these proceedings. [31]      I agree with the Department’s submission that nothing in a self-review is a claim against the state entity that entered into a transaction and that one cannot sue oneself. [32]      In my view the Gijima judgment does not assist I4 Powet’s case in that all what it says is that PAJA is not available to an organ of state who wants to have its own decision reviewed. Nowhere does the Gijima judgment say that in a self-review an organ of state can be a plaintiff and defendant in the same action. [33]      All what the Department does in this action is to set aside a contract on which I4 Power relies. As things stand I4 Power is armed with an arbitrator’s decision which states that the termination of the contract by the Department was unlawful. Claims for damages and payment for the services rendered by I4 Power against the Department are still pending before the arbitrator. There is therefore no merit in Mr Epstein SC’s argument in this regard. Did the Department sue in the correct court? [34]      At paragraph 2 of the Department’s particulars of claim, it is alleged that I4 Power is a company duly registered in terms of the laws of the Republic of South Africa with its principal place of business and its registered address in the Gauteng Province. [35]      In its heads of argument, a submission was made on behalf of the Department that the above allegation is sufficiently pleaded as a basis for its election to sue in this Court, since the original jurisdiction of each division of the High Court is territorial. Furthermore, relying on Erasmus, Superior Court Practice [12] , it was submitted that it is required of the dominis litis , in suing a person residing in the Republic, to select the court in whose area such person is ” residing ” , albeit that another jurisdiction may also sometimes be selected, for instance where the “ cause arises ” . [36]      I have already concluded that I4 power is the defendant in this action and has been joined in these proceedings because it will be affected by the outcome of this action. Mr Epstein SC correctly conceded that if the court finds that I4 power is the defendant, which he argued was not, then this Court has jurisdiction as the plaintiff can sue a party in the area where it resides. [37]      It is trite that for the purpose of jurisdiction the law requires the concept of “ residing ” or “ residence ” to be assigned in a notional way to a company which is a legal persona [13] . [38]      The Department as the dominis litis in this action elected to issue summons against I4 Power in the area of jurisdiction where I4 Power resides. I am therefore persuaded that the action has been instituted in the correct court. Did I4 Power submit to the jurisdiction of this Court? [39]      It is common cause between the parties that the special plea was raised after the Department had amended its particulars of claim. [40]      A submission was made in the Department’s heads of argument that despite the allegations of fraud made against I4 Power in the original particulars of claim, I4 Power since the summons was served wherein the Department’s case in respect of the legality review was clearly pleaded, never objected to the jurisdiction of this Court but participated in the action. [41]      It was argued that I4 Power has thus accepted and acceded to this Court’s jurisdiction. It cannot now belatedly object to the jurisdiction of this Court. [42]      Counsel for I4 Power submitted that the claims of the Department changed when it amended its original particulars of claim necessitating it to raise the special plea of jurisdiction. [43]      In the original particulars of claim the following relief was sought: “ 1.        An order declaring the contract between the plaintiff and the defendant void ab initio. 2.         Costs of the action, including the costs incumbent upon the employment of three counsel; …” [44]      In the amended particulars of claim the following relief was sought: “ 1.        An order reviewing and setting aside the award of the tender contract to the defendant ab initio in terms of section 172 of the Constitution. 2.         An order reviewing and setting aside the contract between the plaintiff and the defendant dated 10 March 2016 and declaring it to have been void ab initio in terms of section 172 of the Constitution. 3.        An order such as the court may regard as just and equitable in terms of section 172(1)(b) of the Constitution.” [45]      Counsel for the Department disagreed that the original claim of the Department was changed in the amended particulars of claim. He submitted that one cannot just look at the prayers without reading the particulars of claim and conclude that this is an ordinary matter of fraud. Furthermore, he submitted that the cause of action is only set out in the particulars of claim. [46]      A reading of the original particulars of claim in particular, paragraphs 6 to 14, 18 and 21 which paragraphs have been incorporated in the amended particulars of claim, does not show that the cause of action in this matter has changed because of the amendment. In fact, the relief sought in the amended particulars of claim is supported by the allegations made in the original particulars of claim which in my view have not changed as a result of the amendment. [47]      Having said that I cannot find any reasons why I4 Power which has participated in these proceedings for more than a year, can now object to the jurisdiction of this Court. I find merit in the submission made on behalf of the Department that I4 Power must be taken to have submitted to the jurisdiction of this Court by its conduct and can therefore not object to the jurisdiction of this Court. [48]      Under the circumstances the special plea is dismissed. Costs [49]      Counsel for the Department asked for costs on attorney and client scale together with costs incumbent upon the employment of three counsel. [50]      One of the reasons for requesting punitive costs was that objecting to the jurisdiction of this Court by I4 Power was a delaying tactic. A bona fide litigant would have applied for the transfer of this matter to the Mpumalanga High Court in terms of section 27(1) of Superior Court Practice Act (“ the Act ” ) [14] if it was of the view that the Mpumalanga High Court was the competent court to hear the matter. Mr Tshikila for I4 Power disagreed and submitted that such an application would be opposed and would be tantamount to ignoring the special plea taken by I4 Power. He also submitted that the Department is not entitled to the costs of three counsel. [51]      Having considered the matter, I cannot find any reasons that justify the award of costs on a punitive scale, and I am not persuaded that the plaintiff is entitled to the costs of three counsel. The intervention application [52]      In this application, Absa seeks leave to intervene as the second defendant in the action between the Department and I4 Power. [53]      The application is only opposed by the Department. The parties [54]      For the sake of convenience in this application, the intervening party will be referred to as “ Absa ”, the first respondent as the “ Department ” and the second respondent as “ I4 Power ”. The Department is the plaintiff in the main action and I4 Power is the defendant. The salient facts [55]      Following the conclusion of the contract between the Department and I4 Power for the provision of services pursuant to the award of the tender to I4 Power, on 21 September 2018, Absa concluded a facility agreement with I4 Power in terms of which it provided I4 Power with an overdraft facility of R55 million. I4 Power ceded its book debts and contract monies held by it to Absa as security in terms of the facility agreement. [56]      Consequent to the cancellation of the contract between the Department and I4 Power by the Department, on 19 March 2020, Absa conditionally re-ceded the claims it held as security to I4 Power to enable it to arbitrate against the Department the dispute relating to the cancellation of the tender contract. The parties’ contentions [57]      Absa contends that it has a direct and substantial interest in the relief sought by the Department. It also claims that it is convenient to join it to the proceedings between the Department and I4 Power. [58]      The Department disagrees that Absa has a direct and substantial interest in the action between it and I4 Power and that it is convenient for it to be joined in the action. The Department contends that currently Absa does not hold any security or “ bare dominium ” rights that would entitle it to have a direct and substantial interest in the action. [59]      The Department further contends that in so far as Absa may occupy a position similar to that of a cessionary, any notion that a cessionary and a cedent may both join in the litigation against a third party, conflicts with the law that prohibits any impairment of the position of a debtor. [60]      It is also contended that Absa has delayed bringing this application and has already begun to cause disruption and prejudice to the Department in pursuing its action against I4 Power. It should not be allowed to continue doing so by joining it to the action. The issues for determination [61]      Whether Absa has satisfied the requirements for joinder that it has a direct and substantial interest in the main action or it is convenient for it to be joined in the action. Applicable legal principles [62]      Rule 12 of the Uniform Rules of Court provides that any person entitled to join as a plaintiff or liable to be joined as a defendant in any action may, on notice to all parties, at any stage of the proceedings apply for leave to intervene as a plaintiff or a defendant. The court may upon such application make such order, including any order as to costs, and give such directions as to further procedure in the action as to it may seem meet. [63]      Our courts have held that a party is entitled to intervene as a plaintiff or a defendant in an action where: (a)       it has a direct and substantial interest in the right that is the subject matter of the action, which could be prejudiced by the judgment of the court. The interest must be such that the intervenor’s joinder is either necessary or convenient. But the possibility that a legal interest exists is sufficient, and it is not necessary for the court positively to determine that it exists. (b)       the allegations made by the intervening applicant constitute a prima facie case or defence. It is, however, not necessary for the intervenor to satisfy the court that it will succeed in its case or defence. It is sufficient for the party seeking to intervene to rely on allegations which if they can be proved in the main action would entitle it to succeed. In assessing the intervenor’s standing, then, the court must assume that the allegations it advances are true and correct; and (c)        the application is made seriously and is not frivolous. [15] [64]      The court in Peermont Global (KZN) [16] explained the extent of an intervenor’s “ direct and substantial interest ” as follows: “ [24]    As it is well established, a direct and substantial interest under the common law involves a ‘legal interest’ in the litigation which may be prejudicially affected by the judgment of the court, and not merely a financial interest (which is only an indirect interest in the litigation), or another form of interest or derivative interest. Examples of persons having a direct and substantial interest are joint owners, joint contractors and partners. By contrast, a sub-tenant or another person with a contractual relationship with a tenant does not have a direct and substantial interest but merely a derivative one.” Discussion [65]      In its founding affidavit, Absa contends that it has a direct and substantial interest in the relief sought by the Department. It asserts that the setting aside of the tender contract would result in I4 Power being unable to pay its debts to it and this would in turn, vest it with various claims against the Department arising from the cession and re-cession agreement between it and I4 Power. [66]      It claims that its interests are directly affected by an order declaring the contract void, as the Department seeks to do in terms of section 172(1)(a) of the Constitution. Further that it is entitled to make submissions to this Court on the appropriate, just and equitable remedy that this Court is empowered to grant in terms of section 172(1)(b) of the Constitution. Moreover, Absa contends that even if the contract is tainted by irregularities, it was entirely innocent of any wrongdoing. [67]      In its initial heads of argument, it was submitted on behalf of Absa that the effect of setting aside the tender contract is that Absa will lose the security that it holds in terms of the cession agreement it concluded with I4 Power. [68]      It was further submitted that in terms of the cession agreement, I4 Power ceded all book debts and contract monies to Absa. This includes contract monies owed to I4 Power because of the Department’s breach of the tender agreement. If the tender agreement is set aside (as the Department seeks to do), then Absa’s security is extinguished. This, so it was submitted, manifestly directly affects a legal interest of Absa – that is protecting its security. [69]      Furthermore, it was submitted that Absa is entitled to intervene to advance three legal contentions: (a)       Firstly, that the Department did not seek condonation for the late review brought seven years after the tender contract was concluded. It is therefore precluded from setting aside the contract. (b)       Secondly, that the tender award and the tender contract are two separate and distinct acts, and because they are two distinct acts, an irregularity in the procurement process does not necessarily result in the setting aside of the tender contract. (c)        Thirdly, it would not be just and equitable to set aside the tender contract, and the court may refuse to do so in terms of section 172(1)(b) of the Constitution. [70]      A further submission was made that this Court has broad powers under section 172(1)(b) of the Constitution to make any order that is just and equitable in the circumstances of the case before it. In support of his argument counsel for Absa relied on the judgment of Gijima and submitted that the Constitutional Court recognised that “ so wide is that power [under section 172(1)(b) that it is bound only by considerations of justice and equity ” [17] . Reliance was also placed on the judgment of EFF where the court had this to say: “ [211] The power to grant a just and equitable order is so wide and flexible, it allows courts to formulate an order that does not follow the prayers in the notice of motion or some other pleading. This power enables courts to address the real dispute between the parties by requiring them to take steps aimed at making their conduct to be consistent with the constitution ” (emphasis added) per Jafta J for the majority). [71]      Moreover, it was submitted that no practical purpose would be served by setting aside the tender contract seven years after the agreement was concluded. I4 Power is not rendering any service in terms of the contract, and even if the Department had not breached the contract, the contract would have terminated through the effluxion of time on 31 January 2023. [72]      In support of its submission, Absa placed reliance on the judgment of JFE Sapela Electronics [18] where the SCA refused to set aside a tender contract precisely because the relief would not serve any practical purpose, and the appellant had delayed seeking the review relief. It was further submitted that this Court should follow the same approach because the Department unreasonably delayed bringing the self-review by many years. It ought to have discovered its grounds of review (misrepresentation in I4 Power’s bid submission) during the bid evaluation and adjudication stage of the procurement process. At the very least, it ought to have sought the relief after it first discovered the alleged misrepresentations towards the end of 2021. It only issued summons on 4 July 2022. [73]      Contending that the Department only seeks to set aside the tender contract because it would render it immune from any claim for damages as determined in the arbitration, it was submitted that it would not be just and equitable to permit the Department to stymie the determination of damages for the following reasons: (a)       I4 Power had already rendered services to the Department, from which it benefited. (b)       At all material times, Absa acted in good faith in advancing capital to I4 Power. It did so without any wrongdoing on its part, or knowledge of any tender irregularities. Prior to entering the facility agreement with I4 Power, Absa relied on the independent legal advice of Poswa Incorporated which confirmed that “ having considered the applicable legislation and the relevant opinion documents they are of the opinion that the company [I4 Power] was legitimately appointed by Mpumalanga DPW ”. Absa thus had every reason to believe that the Department had legitimately appointed I4 Power as a service provider. (c)        Absa, as an innocent party, would lose the security it holds if the tender contract is set aside, in circumstances where it is an innocent party. This is neither just nor equitable. [74]      The Department contends that Absa does not have a direct and substantial interest in the action between it and I4 Power. The only interest it has is an indirect and a financial interest. [75]      Arguing that Absa has no recognised form of security at present, it was submitted that Absa obtained a cession in securitatem debiti from I4 Power which entitled it to hold a pledge that gave it security. Absa elected to re-cede its rights to I4, subject to certain resolutive conditions in case of fulfilment of which Absa may again become the holder of the rights and be treated as if it is a pledgee. By so doing, it relinquished the security it had, so it was argued. [76]      In addition, the Department submitted that Absa does not have any reversionary interest. It was argued on its behalf that a reversionary interest is only applicable to a cession in securitatem debiti and the re-cession does not constitute a cession in securitatem debiti, nor did it reserve the reversionary interest to Absa. [77]      The Department placed reliance on an extract from Christie [19] where the learned author states the following: “ The consequences of a cession in securitatem debiti will depend on the party’s agreement, but the essence of cession by way of security is that the cedent retains as against the cessionary, expressly or impliedly, a reversionary interest to receive back any surplus remaining from the enforcement of the ceded right after the debt in respect of which the security was given has been paid. The reversionary interest may itself be ceded. The dominium of a claim ceded in securitatem debiti remains vested in the cedent unless the parties have agreed otherwise and there is therefore no need for the ceded right to be re-ceded to the cedent once the principal debt secured is extinguished or found never to have existed: the ceded right reverts automatically.” (footnotes omitted) [78]      The Department further submitted that Absa is simply left with no right in the claims against it. It may only, in future become the holder of the claim – if certain conditions occur and if any rights at that stage may exist. It has no “ bare dominium ” rights or anything similar at present and may not ever obtain such. [79]      Regarding Absa’s defences to the main action, the Department contends that the court should bear in mind that it is not disputed on the pleadings before court in the main action that the persons who the Department alleges were not employed by I4 Power were in fact not employed and that the projects the Department complains of that I4 Power did not do, I4 in fact did not attend to. These facts were never disclosed by I4 Power in its tender document or at any time before they were discovered by the Department. In its opposition to the application by the Department for a stay of the arbitration proceedings, I4 Power made allegations that it was authorised by numerous outside persons and entities to use their credentials in the tender document, and those allegations are being disputed by the persons concerned. However, even if there was such consent, it does not remove the misrepresentation that those persons were in the employ of I4 Power which is totally different from having access to those independent service providers. [80]      Regarding the issue of condonation, it was submitted that the question of condonation does not arise in a legality review. All what it is required to do is to set out circumstances surrounding knowledge and if the court finds that there was undue delay, it may overlook such delay. In support of this submission the Department relied on the judgment of Buffalo City Metropolitan Municipality v Azla Construction (Pty) Ltd [20] and Gijima [21] . [81]      In so far as the innocence of Absa is concerned, the Department submitted that Absa also failed to verify the necessary information before it granted I4 Power an overdraft facility and that the opinion relied upon by Absa cannot be regarded as due diligence because it was not compiled for Absa but for I4 Power and Standard Bank. [82]      Furthermore, the Department relied on the judgment of Hlongwane and Others v Absa Bank Limited and Another [22] , and submitted that Absa has a great burden to verify and monitor its clients. [83]      In its supplementary heads of argument, Absa placed reliance on the judgment of Central Energy Fund SOC Ltd and Another v Venus Rays Trade (Pty) Ltd and Others [23] and Altech Radio Holdings (Pty) Ltd and Others v Tshwane City [24] and submitted that the contention by the Department that its alleged innocence is irrelevant, cannot be correct. Furthermore, it was submitted that in Altech [25] , the SCA which eventually refused to condone the delay, was highly critical of the High Court’s failure to have regard to the position of lenders and the impact on them of the cancellation of the tender and the contract pursuant thereto. [84]      Regarding its contention that it would not be just and equitable to declare the contract between the Department and I4 Power invalid, Absa relied on the judgment of Buffalo City Municipality v Asla Construction [26] and Gijima [27] and submitted that while a court is obliged to declare law or conduct inconsistent with the Constitution to be invalid, it does not follow that a contract concluded pursuant thereto will also be set aside. It was further submitted that these cases indicate that an innocent third party funder, like Absa has a direct and substantial interest in any order the court may make. [85]      Regarding joinder for convenience, Absa referred to the judgments of Ploughman NO v Pauw and Another [28] and Rabinowitz and Another NNO v Ned Equity Insurance Co Ltd [29] , and submitted that a court has a discretion under Rule 10 and common law to join parties even where there is no direct and substantial interest in the order sought. The court will exercise its discretion to join parties because it is convenient, equitable, fair and prevents a multiplicity of actions. [86]      Absa also referred to the judgment of YB v SB and Others NNO [30] and submitted that it has been recognised that joinder for convenience arises by reason of inter alia , principles of fairness, justice, good sense and reasonableness. [87]      In its supplementary heads of argument, the Department relied on the judgment of Tasima [31] , and submitted that the main action is in fact what is referred to as a reactive challenge. It is a defence against the claim of I4 Power which is usually raised in the form of a plea and a counterclaim. The counterclaim was not possible because the arbitrator does not have jurisdiction to adjudicate the matter. Evaluation Does Absa have a direct and substantial interest in the outcome of the litigation between the Department and I4 Power? [88]      It is common cause between the parties that after Absa had concluded a facility agreement with I4 Power in terms of which it provided it with an overdraft facility, I4 Power ceded its book debts and contract monies held by it to Absa as security in terms of the facility agreement. Subsequently Absa re-ceded the claims it held as security to I4 Power to enable it to litigate against the Department the dispute that related to the cancellation of the tender contract. [89]      To answer the question whether Absa has a direct and substantial interest in the outcome of the litigation between the Department and I4 Power, it is apposite to look at the re-cession agreement between Absa and I4 Power. [90]      The following clauses of the re-cession agreement are pertinent: “ 1.   We, the undersigned … acting on behalf of Absa hereby re-cede, subject to clause 3 hereof, to and … duly authorised and acting on behalf of I4 Power all rights, title and interest in and to the debt currently owed by the Department to the client and previously ceded to the Bank as additional security under the Cession of debtors dated 21 September 2018 securing the client’s overdraft facility held under account number … 2.         The rights, title and interest re-ceded to the client in terms hereof, expressly include the right in favour of Absa to institute legal proceedings against the Department and for the recovery of unpaid amounts due and payable to the client and will endure for the period of litigation only whereafter all rights, title and interest will automatically and with immediate effect be ceded by the client back to the bank and no further written document to that effect will be required. 3.         In the event that any of the occurrence listed hereinafter takes place, all rights, title and interest re-ceded to the client as aforementioned shall then automatically and with immediate effect be ceded by the client back to the Bank and no further written document to that effect will be required. For the avoidance of doubt the aforesaid cession to the client is a condition one. The relevant occurrences are: 4.1      the client’s failure to institute legal recovery proceedings against the department by issuing legal recovery process on or before the 31 January 2020. 4.2      the client’s failure to comply with any term or condition of its facility and/or cession of debtors or any obligation secured thereby or otherwise committing a breach thereof. 4.3      any action by the client constitutes an act of insolvency or any application against the client for Business Rescue or liquidation or the client committing any payment default to any of its creditors. 4.4      where applicable, a resolution is taken for or application is made for the liquidation, administration, judicial management, business rescue, debt review or any similar process by or in respect of the client. 4.5      Where applicable, the client commits an act as contemplated in section 344 of the Companies Act (No 61 of 1973) or section 68 of the Close Corporations Act (No 69 of 1984), or any similar provision in any replacement legislation, or any of the events occur as contemplated in section 80 or 81 of the Companies Act (No 71 of 2008) pursuant to which the client can be wound up; 4.6      the client is unable to pay any of its debts when payable.” [91]      The re-cession of I4 Power’s claim against the Department back to I4 Power is subject to various resolutive conditions listed above, the fulfilment of which will call the debt to be once again ceded from I4 Power to the bank. [92]      As things stand there is no evidence that any of the above resolutive conditions have been fulfilled. [93]      The SCA in Engen Petroleum Ltd v Flotank Transport (Pty) Ltd [32] reaffirmed the legal position in Grobler v Oosthuizen [33] regarding a cession in securitatem debiti as follows: “ [12] … In Grobler v Oosthuizen (Grobler) this court recognised the existence of opposing theories in our law regarding cessions in securitatem debiti, namely the ‘pledge theory’ and the ‘outright cession theory’. However, it found it unnecessary to resolve the debate between these theories one way or another. “ [13] On the ‘pledge theory’ the principal debt is ‘pledged’ to the cessionary on the basis that the cedent retains ‘bare dominium’ or a ‘reversionary interest’ in the claim against the principal debtor. On such construction, only the right to enforce the right upon non-payment is ceded. Since a cession ordinarily entails a transfer of a right, it is the retention by the cedent of the very substance of the right around the which the doctrinal debate regarding the pledge theory was centred. This Court, in Grobler, recognised however that such debate had been resolved, primarily for pragmatic reasons, with the pledge theory accepted as the default position. On this basis a cession in securitatem debiti is now taken to resemble a pledge, unless the intention of the parties is different.” [94]      It is clear from the above that a reversionary interest is only applicable to a cession in securitatem debiti and that the re-cession does not constitute a cession in securitatem debiti , nor did it reserve the reversionary interest to Absa, I find that there is merit in the Department’s submission that Absa has currently no form of security that it would protect under the circumstances. In terms of the re-cession, it does not have a reversionary interest, nor does it have any bare dominium rights or anything similar at present. [95]      Taking into account the nature of the action referred to as a reactive challenge, a defence against the claim of I4 Power in the form of a counterclaim or plea, I cannot find any reason why Absa which had elected to re-cede its rights back to I4 Power, would now want to intervene as a party in the same proceedings with I4 Power and advance the same claim at the same time as different parties to the same litigation. [96]      The submission by Absa regarding the relevance of its innocence in the allegations made against I4 Power and reliance thereof on the judgments of Central Energy Fund SOC [34] and Altech Radio Holdings [35] that it has to be joined in these proceedings, is in my view neither here nor there in that I find the cases referred to distinguishable from the matter in casu in that the Department is not seeking a self-review to set aside its previous decision and contract because it is guilty of misconduct and/or has acted unlawfully or relying for the setting aside of its decision on its own improper behaviour or that of its officials. The basis of the setting aside of the award of the tender and the contract is the fraudulent misrepresentation allegedly made by I4 Power in its tender bid which tainted the procurement process. Furthermore, the issue of the re-cession of I4 Power’s claims against the Department also distinguishes the matter in casu from the cases referred to by Absa. [97]      It is apposite to mention that the issue of the protection of its security by Absa was not mentioned in the founding papers. In its founding affidavit Absa stated that if the tender contract is set aside, I4 Power would not be able to pay it, and this would vest it with claims against the Department. Further that it was at the risk of losing its contractual claims against the Department. In addition, there were further submissions by Absa that if the tender contract is set aside, its security would be cancelled or extinguished. I find merit in the Department’ submission that Absa’ submission does not hold any water because the validity of Absa’s security is not at issue in these proceedings. It will continue to hold its rights unaffected. It is only the economic value of its cession that may be affected. It is my view that the interest that Absa is pursuing in this application is merely an indirect and financial interest and not a direct and substantial interest in the outcome of the litigation. [98]      Having said that, I find it unnecessary to deal with other issues raised under the direct and substantial interest. Joinder for convenience [99]      Regarding the issue of joinder for convenience, in its founding affidavit Absa contends that it would be convenient to join it in the action proceedings between the Department and I4 Power because of the factual and legal issues engaged in the main action. Furthermore, that its claims against the Department would be the same as that of I4 Power because of the cession and re-cession agreements. Both facts and law that underpin the claims are the same, excluding it would serve no practical purpose but would be prejudicial to Absa. It claims that the Department is not prejudiced by its joinder at all. Absa asserts that it only seeks to intervene to address the three legal issues arising from the main action and that Its intervention will not delay or protract the litigation further. [100]   While this issue was not addressed in Absa’s original heads of argument, in its supplementary heads of argument Absa submitted that a court would exercise its discretion to join parties because it is convenient, equitable, fair and prevents a multiplicity of actions. If its intervention is refused, it is exposed to the loss of its security in circumstances where it would not have had an opportunity to explain why the court should exercise its remedial discretion in favour of preserving the tender contract. [101]   It is trite that the cedent and the cessionary cannot simultaneously litigate for the same debt because once a right is ceded, the right to enforce that debt typically transfers to the cessionary. Absa re-ceded the right ceded to it by I4 Power back to I4 Power. It relinquished its exclusive right of action to collect the debt owed by the Department to I4 Power while the security agreement is in force. The argument by Absa that it is not seeking to litigate for the recovery of damages but to preserve an agreement which if it is set aside, it extinguishes its security is not of assistance to Absa’s case. Absa and I4 Power cannot simultaneously litigate for the same debt. In my view the question of prejudice does not even arise. It follows that it is also not convenient to join Absa in the action between the Department and I4 Power. [102]   Under the circumstances I conclude that Absa has failed to establish that it has a direct and substantial interest in the outcome of the action between I4 and the Department and that it is convenient for it to be joined in these proceedings. Costs [103]   Counsel for the Department asked for costs which include the costs for the employment of three counsel in this application, two on Scale C and one on Scale B. I am not persuaded that this application warranted the employment of three counsel. [104]   In the result the following order is made: 1.         The special plea is dismissed. 2.         The defendant is ordered to pay the costs of the plaintiff which costs include the costs of two counsel on Scale C. 3.         The application for intervention is dismissed. 4.         The applicant is ordered to pay the costs of the first respondent which costs include the costs of two counsel on Scale C. M J TEFFO JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA Appearances For the plaintiff                   J L van der Merwe SC D Mills SC J Janse van Rensburg Instructed by                      Soutie van Rensburg Attorneys For the defendant              H Epstein SC S Tshikila Instructed by                      Malatji & Co Attorneys For the intervening party   G Marcus SC K Perumalsamy Instructed by Webber Wentzel Heard on                            11 June 2025 Handed down on                29 December 2025 [1] State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) [2] Supra [3] [2014] ZACC 6 [4] 1999 (2) SA 586 (T) at 593G [5] Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC [6] Supra [7] Supra [8] The Constitution of the Republic of South Africa [9] The Constitution of the Republic of South Africa [10] Supra [11] 2022 (4) SA 583 (SCA) [12] Erasmus, Superior Court Practice , 3 rd edition, Van Loggerenberg, Vol. 1, p. D-183 and section 21(1) of the Superior Court Act, 10 of 2013 [13] See Erasmus , p. D-186; Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd [1990] ZASCA 86 ; 1991 (1) SA 482 (A) at 493B; PNG Motors/Kyalami (Pty) Ltd v First Rand Bank Ltd, WestBank Division 2015 (2) SA 634 (SCA) at 639I-J [14] Act 10 of 2013 [15] Peermont Global (KZN) Pty Ltd v Afrisun KZN (Pty)Ltd t/a Sibaya Casino and Entertainment Kingdom and others and a related matter [2020] 4 ALL SA 226 (KZP) at para [18] and the cases cited therein. [16] Peermont Global supra [17] Supra [18] Chairperson, Standing Tender Committee and Other v JFE Sapela Electronics (Pty) Ltd and Others 2008 (2) SA 638 (SCA) at [29]-[30] [19] Christie’s Law of Contract , p 570 [20] Buffalo City Metropolitan Municipality v Azla Construction (Pty) Ltd 2019 (4) SA 331 (CC) at paras 51 and 63 [21] State Information Technology Agency SOC Ltd v Gijima Holdings supra para 52 [22] (75782/13) [2016] ZAGPPHC 938 (10 November 2016) [23] 2022 (5) SA 56 (SCA) at paras 42, 48, 49, 59 and 60 [24] 2021 (3) SA 25 (SCA) at paras 45-52 and 64-66 [25] Supra [26] Supra [27] Supra [28] 2006 (6) SA 334 (C) at 341E-F [29] 1980 (3) SA 415 (W) at 419 [30] 2016 (1) SA 47 (WCC) at para 64.4 [31] Department of Transport and Others v Tasima (Pty) Ltd 2017 (2) SA 622 (CC) at par 135 [32] 2022 JDR 1745 SCA at paras 12 and 13 [33] 2009 (5) SA 500 [34] Supra [35] Supra sino noindex make_database footer start