Constitutional subsidiarity is an important principle of South African law. While the term sounds technical, the principle itself is relatively simple: if Parliament enacts legislation to give effect to a constitutional right, litigants should rely on the provisions of that legislation rather than directly on the provisions of the Constitution of the Republic of South Africa, 1996. Effectively, that legislation becomes the primary source through which the right must be enforced.

That means a person cannot simply ignore the legislation and rely directly on the Constitution. Instead, they must either rely on the applicable legislation or challenge the legislation as unconstitutional if they believe that it does not meet constitutional standards.

This principle was formulated to respect the doctrine of separation of powers by recognising Parliament’s role in giving practical content to constitutional rights.

The courts have routinely applied this principle for years. However, on 2 July 2026, the Constitutional Court in Adonisi and Others v Minister for Transport and Public Works, Western Cape and Others; Minister of Human Settlements and Another v Minister for Transport and Public Works, Western Cape and Others [2026] ZACC 29 formulated a nuanced approach on how it may apply. The Court dealt with the constitutional obligations of government and state organs to use state-owned property to address spatial inequality.

The applicants argued that by selling off a state-owned property (colloquially referred to as the Tafelberg property)—which is located in Sea Point, a seaside suburb in Cape Town, close to educational facilities, health facilities, transport nodes, and social amenities—government had failed to fulfil its constitutional obligations to use such properties to address the enduring legacy of spatial apartheid and to progressively provide access to adequate housing. The respondents counterargued that by directly invoking the Constitution instead of existing housing legislation (such as the Housing Act, the Social Housing Act, and the Spatial Planning and Land Use Management Act, amongst others) the applicants had contravened the principle of constitutional subsidiarity.

The Supreme Court of Appeal accepted the argument. However, the Constitutional Court rejected the argument and adopted a more purposive interpretation.

The Constitutional Court clarified that while subsidiarity is a vital principle, it is not an absolute barrier to blocking constitutional accountability because not all constitutional rights are structured in the same way. The court explained that some constitutional provisions expressly require Parliament to give effect to the right in question (for example, section 9(4) of the Constitution states: “National legislation must be enacted to prevent or prohibit unfair discrimination”). In such instances, constitutional subsidiarity must be fully applied because the Constitution itself identifies legislation as the primary means of enforcing the right.

However, the socio-economic rights in sections 26 and 27 of the Constitution (which protect the rights of access to housing, healthcare, food, water and social security) differ in that they require the State to take “reasonable legislative and other measures” (my emphasis) to progressively achieve these rights. This means government has a constitutional obligation to adopt and implement reasonable policies, programmes, plans and executive actions. Accordingly, even where legislation exists, courts may still examine whether government’s conduct is reasonable in light of the constitutional right. In other words, subsidiarity does not prevent courts from measuring the State’s conduct directly against constitutional standards.

The Court found that it could directly evaluate whether the relevant local and provincial governments (i.e. City of Cape Town and the Western Cape Province respectively) acted reasonably under the Constitution when they failed to provide affordable housing in the inner-city and surrounds. The Court ultimately found that they had failed to meet this constitutional standard.

While the primary importance of this judgment is its finding that government or state organs can and should be held accountable for failing to meet their constitutional obligations to combat spatial inequality, it is also important for clarifying that constitutional subsidiarity is not always the end of the enquiry, particularly where courts are asked to assess whether government or state organs have reasonably implemented constitutional rights.

It is important to note that the Court’s interpretation does not create an exception to constitutional subsidiarity, nor does it abandon the principle—it merely qualifies it. By adopting this approach, the Constitutional Court has contributed to redressing the spatial injustice inherited from apartheid, and to advancing social justice and transformation.

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The National Treasury published the draft General Public Procurement Regulations and draft Public Procurement Tribunal Regulations (“Draft Regulations“) for public comment as contemplated in section 63 of the Public Procurement Act, 2024 (“Act“). The Constitutional Court recently heard a challenge to the Act’s validity. Together, that challenge along with the publication of the Draft Regulations have placed ongoing conversations on the operation of the Act back in the forefront. In this article we draw specific focus on the dispute resolution mechanism contemplated in Chapter 6 of the Act.

The Act introduces a two-layered dispute resolution mechanism which allows bidders to challenge the decision of an organ of state to award a bid to another competing bidder.

The first layer to the dispute resolution mechanism is the internal remedy contemplated in section 35(1) of the Act. In terms of this provision, a bidder aggrieved by the decision of an organ of state may submit, to that organ of state, an application for reconsideration of the award. The application for reconsideration must be submitted within 10 days from the date on which the aggrieved bidder is informed of the decision to award the bid to another competing bidder. Upon receipt of the application for reconsideration, the organ of state has a choice to either: (a) dismiss the application for reconsideration; or (b) immediately institute an internal investigation and inform the bidder of its findings and decision within 30 days.

From our interpretation of the Act, the internal remedy must be complied with if an aggrieved bidder wishes to utilise the dispute resolution mechanism contemplated in the Act. Section 35(1) of the Act must be read together with section 35(2)(a) of the Act. Section 35(2)(a) of the Act expressly provides that a bidder must submit the application for reconsideration before it can approach the Public Procurement Tribunal (“Tribunal“) or a court to review the decision to award a bid. The only circumstance where this peremptory step need not be taken is if there are exceptional circumstances that are in the interests of justice. A failure to follow the process contemplated in section 35(1) of the Act could result in the Tribunal or court directing the aggrieved bidder to first submit the application for reconsideration.

The second layer to the dispute resolution mechanism is found in section 47 of the Act. This section provides that if an aggrieved bidder is not satisfied with the decision on the application for reconsideration, the aggrieved bidder may submit an application for review with the Tribunal. This application for review must be submitted within 10 days from the date on which the aggrieved bidder is informed of the outcome of the application for reconsideration. It is noted that the 10-day period may be extended to 15 days if the application for review raises public interest considerations. Upon receipt of the application for review, the Tribunal has 30 days to make an order (unless an extension has been requested). Once the order has been made, the order of the Tribunal may be judicially reviewed in terms of the Promotion of Administrative Justice Act 3 of 2000 or any applicable law.

At face value, the time periods contemplated in the two-layered dispute resolution mechanism suggest that procurement disputes will be addressed expeditiously. This view is supported by section 51(1)(b) of the Act which states that the Tribunal “must strive to ensure that proceedings are conducted with as little formality and technicality, and as expeditiously as possible…”. While we note that the rules of the Tribunal will only be determined once the Tribunal has been constituted, the framing and operation of the two-layered dispute resolution mechanism and the role of the Tribunal may not presently work as efficiently has contemplated. The unfortunate reality is that procurement law matters in South Africa are rarely matters which can be determined expeditiously or with little formality and technicality, unless the issue is narrow.

Procurement disputes often turn on whether a bid award complied with applicable procurement prescripts. This assessment may include consideration of the information considered by the organ of state at each stage of the procurement cycle and the procedure it followed. Depending on the scale and complexity of the bid, this may also involve reviewing extensive documentation and affidavits either supporting or challenging the impugned decision. This raises questions about whether an aggrieved bidder would have access to all of the documents it requires to support its complaint and whether the matter can be extensively and properly ventilated by the Tribunal within the timelines and format mandated by the Act.

With the above realities in mind, it is our view that the dispute resolution mechanism contemplated in the Act may not achieve its intended objective of expeditious resolution of procurement disputes.  Instead, it will add additional, potentially unsatisfactory, steps before final resolution of the dispute by a court. The question is whether the truncated timelines and informal processes of the Tribunal will assist in any way in reducing the number of procurement disputes which find their way to our courts.  Furthermore, would it not be more efficient for an aggrieved bidder, after exhausting the internal remedy contemplated in section 35(1) of the Act, to approach the court directly to review the award decision, rather than first approaching the Tribunal and thereafter seeking judicial review of the Tribunal’s decision?

Admittedly, an advantage of pursuing the dispute resolution mechanism contemplated in chapter 6 of the Act is the standstill mechanism in section 53 of the Act which by-passes the need for an aggrieved party to obtain an interim court order which prevents the organ of state from taking steps to conclude a contract with the successful bidder until the conclusion of the application for reconsideration and/or the application for review in terms of the Act. Once steps are taken outside of the Act, an interim court order will need to be obtained by the aggrieved bidder unless an agreement is reached with the organ of state.

It may be some time before it becomes clear how the Act’s two-layered dispute resolution mechanism will operate, and whether it will frustrate the resolution of procurement disputes or provide an effective and efficient alternative without overburdening the already constrained court system.

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South Africa is in the midst of what could prove to be one of the most significant reforms of its public procurement framework since democracy. Or it may not be, depending on what the Constitutional Court decides.

The Public Procurement Act 28 of 2024 (“the Act“) was assented to by the President on 18 July 2024 and published in Government Gazette No. 50967 on 23 July 2024, but it is not yet in force. Until it is, procurement decisions remain governed by the Preferential Procurement Policy Framework Act 5 of 2000 (“PPPFA“), the Public Finance Management Act 1 of 1999 and the Municipal Finance Management Act 56 of 2003, including the 90/10 and 80/20 preference point systems set out in section 2 of the PPPFA.

On 16 April 2026, National Treasury published the draft General Public Procurement Regulations, 2026 (“the Regulations“) and draft Public Procurement Tribunal Regulations, 2026, for public comment. The comment period has since been extended to 15 July 2026, which reflects the breadth of what is being proposed.

The new evaluation model

Under the current system, price drives the outcome. A bidder offering the lowest price will often prevail, provided it meets the basic threshold requirements and scores sufficient preference points.

Regulation 25 establishes a mandatory threshold-based model that departs materially from the current system. Procuring institutions must now assign weight across four criteria: capability and capacity to deliver, functionality and technical requirements, preference, and price. The first three criteria are each subject to a mandatory minimum threshold of 70%, and a bidder who fails any one is excluded before price is even considered.

Sections 17 to 19 of the Act reinforce the shift towards a threshold-driven model. Section 17 mandates outright set-asides for designated categories of suppliers; section 18 introduces prequalification thresholds that determine eligibility for participation, and section 19 imposes subcontracting obligations on successful bidders.

For contracts below R20 million, Regulation 56 requires procuring institutions to reserve certain procurement exclusively for identified categories of persons, including black people, black women, women, persons with disabilities, military veterans, youth, and small enterprises within a particular geographical area, provided the bidder demonstrates 100% ownership by that category. Where no qualifying bids are received, the procuring institution must re-advertise the bid or proceed with no preferential procurement, after making reasonable efforts and reporting to the Public Procurement Office and the relevant provincial treasury.

For contracts of R100 million and above, successful bidders must subcontract at least 25% of the total contract value to enterprises 100% owned by South African citizens. Draft Regulation 64 (6) includes a direct payment mechanism: if a supplier defaults on payment to a subcontractor, the procuring institution may pay the subcontractor directly and deduct that amount from what is owed to the supplier.  This is a meaningful protection for smaller businesses historically exposed to delayed or defaulted payments from main contractors, albeit it introduces a new layer of financial risk for suppliers.

Regulation 60 adds a retrospective eligibility requirement. To qualify under section 18, bidders must show that at least 40% of their prior procurement spend was on enterprises that are at least 51% owned and managed by black people, with proof of such compliance. Past procurement behaviour, not just a current B-BBEE certificate, now forms part of eligibility.

The concept of prequalification criteria is, however, not new, having been the subject of the legal challenge launched by Afribusiness, which made its way to the Constitutional Court in Minister of Finance v Afribusiness NPC 2022 (4) SA 362 (CC) against the now repealed 2017 Preferential Procurement Regulations. Prequalification criteria are reintroduced in section 18 which establishes a framework, requiring procuring institutions to apply specified conditions, within prescribed thresholds, to promote the participation of historically disadvantaged groups. These criteria may include minimum requirements for bidders to demonstrate black economic empowerment participation or to subcontract a portion of the contract to qualifying small enterprises, particularly those owned by black people, women, youth, persons with disabilities, and military veterans. The section further provides that bidders who fail to meet these prequalification criteria must be disqualified and obliges procuring institutions to identify opportunities where such measures can support transformation in underrepresented sectors.

The constitutional question mark

The Western Cape Government, joined by the City of Cape Town and amaBhungane, has launched an application in the Constitutional Court for a declaration that the Act is unconstitutional and invalid, on the grounds that Parliament failed to facilitate reasonable public participation on material amendments as required by section 59(1)(a) of the Constitution. The matter was argued before the Constitutional Court on 18 and 19 May 2026.

The challenge is procedural, not substantive in that it targets how the Act was passed, not what it does. The Constitutional Court has long been clear that meaningful public participation in the legislative process is not a formality. In Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC), the Court confirmed that a failure to facilitate genuine public involvement can render legislation invalid. If the Court finds that the passage of the Act fell short of that standard, the Act and the draft Regulations will fall with it.  Until then, the Act remains signed, not commenced, and constitutionally contested.

One element likely to survive any outcome is the debarment framework under section 15. A central debarment register will be established and procuring institutions will be required to verify suppliers against the database before awarding contracts, and to ensure that every transaction is digitally traceable.  As the Constitutional Court affirmed in Allpay Consolidated Investment Holdings v CEO, South African Social Security Agency 2014 (1) SA 604 (CC) said, compliance with procurement principles is a constitutional obligation, not a technical exercise. The debarment database will therefore strengthen this obligation.

Notwithstanding the current constitutional challenge, the direction of travel is clear. Whatever the Constitutional Court decides, the policy instinct behind the legislation i.e. tighter entry controls, traceable transactions and accountability for how preference is actually delivered is unlikely to disappear.  A successful challenge would remit the Act back to Parliament for proper public participation and not completely bury the reform agenda.

For businesses bidding in the public sector, the practical message is to prepare now rather than awaiting certainty that may not arrive on a convenient timeline.  Bidders must pressure-test their capability and technical documentation against the 70% thresholds, since these are now pass/fail gates.  In addition, businesses relying on subcontracting models should review payment processes and contractual terms in light of direct payment mechanism, which shifts real financial exposure onto main contractors.  Lastly, any business with a B-BBEE strategy built around point-in-time compliance should start tracking procurement spend given the retrospective threshold under Regulation 60.

One significant tension not resolved by the Regulations is that the measures designed to advance transparency and redress also add layers of threshold compliance, documentation and risk allocation which will likely lengthen procurement timelines, particularly for relatively small bidders without dedicated compliance resources. Whether the trade-off is justified is, in part, what the public comment process is for.

Readers are encouraged to participate in the public comment process before 15 July 2026. Comments can be submitted to DraftGeneralProcurementRegulations@treasury.gov.za.

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On 12 March 2026, the Minister of Communications and Digital Technologies, Mr Solly Malatsi, published for public comment the Draft Policy Direction on Matters Relevant to Electronic Communications Network Deployment Pursuant to the National Policy on Rapid Deployment of Electronic Communications Networks and Facilities, 2023 (“the Draft Policy”).

The Draft Policy largely concentrates on the rapid deployment of electronic communications facilities with the objectives being to give effect to existing national and sector policy pertaining to access required to use of both public and private land in order to facilitate the rollout of nationwide affordable high-speed broadband networks, it directs the Independent Communications Authority of South Africa (“ICASA“) to review and if necessary, strengthen the Facilities Leasing Regulations promulgated under the Electronic Communications Act, 2005 (“ECA“) having particular regard to:

• the qualifying criteria for licensees who wish to exercise their section 22 rights. As a minimum, ICASA is directed that this qualifying criteria must include that the licensee holds a valid electronic communication network service license and is incompliance with their obligations in accordance with the license; there are no other suitable forms of access requested to the facilities identified; and the requesting licensee has made available to ICASA the location of all of the facilities;
• the determination of essential facilities and the terms on which access to essential facilities will be granted;
• the concept of open access;
• improving the time within which requests must be considered and approved, and agreements finalised by licensees in terms of chapter 8 of the ECA; and
• monitoring, enforcement and implementation of the amended Facilities Leasing Regulations, which shall include the filling of all agreements with ICASA.

The explanatory memorandum to the Draft Policy, in respect of facilities leasing, further records that whilst the Facilities Leasing Regulations have been helpful in facilitating network-sharing and network access to enable competitors to avoid duplicating infrastructure, reducing the strain on the environment and reducing costs, the impact of the Regulations on network deployment and affordable access has not been assessed.

Although ICASA is yet to amend the Facilities Leasing Regulations, on 20 April 2026, the Minister introduced, in the National Assembly, the Electronic Communications Amendment Bill (“Amendment Bill“). In respect to facilities leasing, the Amendment Bill proposes the following amendments to the ECA:

• the addition of “AND WHOLESALE PRICING RULES OR STANDARDS” in the heading of Chapter 8 of the ECA;
• the inclusion in section 43(8) of an obligation on ICASA to prescribe the list of essential facilities within 12 months of the coming into operation of the Amendment Act;
• the amendment of the days provided for in section 43(8A) (b) for licensees receiving requests for leasing facilities to agree on non-discriminatory terms and the conditions for facilities leasing within 60 days and no longer 20 days and where there is a dispute on the non-discriminatory terms, that such conditions be imposed by ICASA within 60 days of receiving notification of the failure to reach an agreement; and
• the review of the Facilities Leasing Regulations at least once every 24 months with due regard to market and legal developments.

Similar to the memorandum to the Draft Policy, the memorandum on the objects of the amendment bill indicates that the Amendment Bill seeks to improve the facilities leasing framework. Hopefully the introduction of the Amendment Bill (and to some extent the Draft Policy) will lead to a more defined process for purposes of implementing section 43 (1) of the ECA read with Regulation 3 of the Facilities Leasing Regulations.

Section 43(1) of the ECA provides an obligation on licensees to, on request, lease electronic communications facilities (i.e. infrastructure) to another licensee (including exemption holders) subject to terms and conditions of an electronic communications facilities lease agreement which the parties must enter into, unless the request is considered unreasonable (often arising from economic or technical feasibility). A clear issue that has arisen is the interpretation of section 43(1) of the ECA relating to which party must initiate the process of facilities leasing and the corresponding rights and/or obligations of the respective parties, namely, the “facilities seeker” and the facilities provider”.

The issue raised above is compounded by the conflicting judgments handed by the Gauteng Division of the High Court, Pretoria in Octotel (Pty) Ltd v Chairperson, Independent Communications Authority of South Africa and Others 2026 JDR 0307 (GP) and Metrofibre Networx (Pty) Ltd v Independent Communications Authority of South Africa and others 2024 JDR 4018 (GP), on the interpretation of the said section insofar as which party must trigger the process, and further on the issue as to whether ownership of the electronic facilities, is an element to be considered in determining the process under section 43(1) of the ECA.

While both of these cases are currently on appeal in the Supreme Court of Appeal, it may have been beneficial for the drafters of the Amendment Bill to use the opportunity to add clarification language in the Amendment Bill which clarifies the interpretative mischief.

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In September 2024, we published an article examining whether Government was aligned in its approach to enabling the rapid deployment of electronic communications networks and facilities, highlighting a persistent disconnect between national policy objectives and municipal implementation, particularly in the context of the Standard Draft By-Laws for Deployment of Electronic Communications Facilities (“Draft By-Laws“), gazetted on 24 February 2023. We identified several specific deficiencies in those By-Laws, including the undefined scope of “persons” to whom they apply (notwithstanding section 7 of the Electronic Communications Act’s (“ECA“) prohibition on providing services without a licence), the compounding of wayleave approval timelines to in excess of 90 working days, and the imposition of unclear ongoing charges under the proposed Municipal Land Use Agreements. We also noted that, despite national government’s stated commitment to rapid deployment, only three municipalities had incorporated the Draft By-Laws into their wayleave by-laws.

The publication of the Draft Policy Direction by the Minister of Communications and Digital Technologies in March 2026 (“Draft Policy”), followed by ICASA’s Draft Rapid Deployment Regulations (“the Regulations”) on 10 April 2026, signals a coordinated attempt to translate policy ambition into an operational regulatory framework. The Draft Policy had already directed ICASA to prescribe regulations addressing the manner, costs of and time within which a decision for access must be made, the implementation and publication of decisions made in terms of a dispute resolution procedure, and how reasonable compensation must be determined. The Draft Policy and the Regulations now seek to give detailed effect to those earlier directives.

A Shift from Policy Fragmentation to Regulatory Alignment

The Draft Policy explicitly gives effect to the 2023 National Policy on the Rapid Deployment of Electronic Networks and Facilities (“the National Policy“) by ensuring more efficient access to land, both public and private, for broadband infrastructure. This builds on the broader objectives of the SA Connect policy, which recognised that the lack of always-available, high-speed and high-quality bandwidth negatively impacts upon South Africa’s development and global competitiveness.

Importantly, the Policy Direction does not operate in isolation. It directs ICASA to develop a regulatory framework that addresses key structural inefficiencies, including unnecessary duplication of infrastructure, inconsistent access to public servitudes and infrastructure, the absence of a centralised infrastructure database, and the lack of effective dispute resolution mechanisms. ICASA’s Draft Regulations are therefore the operationalisation of the Draft Policy, providing the procedural detail that has historically been absent.

Standardisation of Access and the End of Informal Deployment Practices

A significant contribution of the Draft Regulations is the formalisation of land access procedures under section 22 of the ECA, which empowers ECNS licensees to enter upon any land, construct and maintain electronic communications networks or facilities, and to alter or remove their electronic communications facilities, with due regard to applicable law and the environmental policy of the Republic. As interpreted by the Constitutional Court in City of Tshwane Metropolitan Municipality v Link Africa (Pty) Ltd and Others [2015] ZACC 29, the right under section 22 entitles licensees to select and access premises, provided this is done in a civilised and reasonable manner, including giving reasonable notice and consulting with the property owner. Where licensees previously relied heavily on these statutory rights of entry — often resulting in disputes, as is evident from recent cases such as Metrofibre Networks (Pty) Ltd v Independent Communications Authority of South Africa and Others [2024] ZAGPPHC 919 (11 September 2024) – the Regulations now impose a structured process requiring prior approvals from relevant authorities, mandatory consultation with landowners and affected communities, and the conclusion of an access agreement governing entry, installation, and compensation.

This reflects a deliberate move towards procedural fairness and transparency, addressing one of the key criticisms in our earlier analysis, namely, the absence of uniform engagement standards. Practically, the procedures for approval remain a concern at local authority level. Section 24 of the ECA requires ECNS licensees to give 30 working days’ notice to any local authority or person owning or responsible for the care and maintenance of any street, road or footpath. As we noted in our earlier article, the cumulative effect of obtaining prior approvals from all relevant authorities before submitting an application could extend the effective approval period to in excess of 90 working days, a concern which remains relevant under the new framework.

Infrastructure Sharing and the Move Toward a Coordinated Network Economy

The Draft Policy places particular emphasis on reducing duplication of infrastructure, including by encouraging access to existing facilities and public infrastructure. This is reinforced in the Draft Regulations through obligations to cooperate with other licensees and provisions for trench sharing and co-build arrangements, marking a transition from a competitive build model to a more coordinated, efficiency-driven deployment environment.

The Emergence of a National Infrastructure Database

A central pillar of both the Draft Policy and the Draft Regulations is the establishment of a centralised Geographic Information System (GIS) database. The Draft Policy envisages a database populated by licensees with information on new and existing infrastructure, while the Draft Regulations go further by prescribing detailed data submission requirements, bi- annual reporting obligations, and the inclusion of forward-looking investment plans. A significant development. The absence of reliable infrastructure data has historically contributed to repeated trenching, accidental damage to existing networks, and inefficient allocation of resources. The GIS framework introduces a foundation for evidence-based regulation and coordinated planning, aligning South Africa with international best practice.

Reconfiguring Property Rights Through Compensation and Process

The Draft Policy’s emphasis for reasonable compensation to landowners where deployment activities cause damage, aligns with the National Policy requirement that compensation charged by property owners ought to be reasonable, proportionate to the disadvantage suffered, and may not enrich the property owner or exploit the licensee. Consistent with the ECA, which provides that licensees are only obligated to pay the reasonable expenses incurred as a consequence of the construction, alteration or removal of electronic communications facilities and networks, the Draft Regulations introduce a structured compensation framework requiring good faith negotiations, consideration of market value and demonstrable loss, and compensation for both physical damage and loss of use of land.

Notably, ICASA does not prescribe compensation amounts, instead facilitating a process aimed at achieving a “just and equitable balance” between the interests of licensees and landowners. This approach reflects a careful constitutional balancing exercise recognising the importance of broadband infrastructure while safeguarding property rights.

Dispute Resolution

Both the Draft Policy  and the Draft Regulations recognise the absence of effective dispute resolution as a major impediment to deployment. The Draft Policy  contemplates early declaration of disputes, possible suspension of deployment activities, and referral of compensation disputes to courts. The Draft Regulations give effect to this through a tiered dispute resolution framework requiring negotiation, mediation within a prescribed period, and escalation to ICASA, arbitration, or courts. This provides much-needed clarity and predictability, although the potential suspension of deployment pending dispute resolution could introduce delays if not carefully managed.

Persistent Challenges: Municipal Alignment and Implementation Risk

However, notwithstanding these advances, the Draft Policy itself acknowledges that only a fraction of municipalities have adopted the Draft By-Laws. Inconsistent wayleave processes at local authority level remain a significant obstacle. The success of the Draft Regulations will therefore depend heavily on municipal cooperation, alignment of by-laws with the national framework, and the administrative capacity of local authorities. Absent this alignment, there remains a risk that regulatory standardisation at national level may not fully translate into practical efficiency on the ground.

Conclusion: A Turning Point—But Not Yet a Resolution

The Draft Policy and Draft Regulations represent the most comprehensive attempt to date to address the structural barriers to rapid deployment in South Africa. They reflect a clear shift toward procedural standardisation, coordinated infrastructure planning, and balanced protection of property rights.

However, the ultimate question remains one of implementation. The framework is now considerably more coherent, but its success will depend on whether it can overcome the same challenges that have historically hindered rapid deployment, particularly at municipal level. What is clear, however, is that Government is now moving in a more unified direction. The disconnect we previously identified may not yet be fully resolved, but it is, at the very least, being actively addressed.

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The case of Babita Deokaran, a senior official at the Gauteng Health Department who lost her life after exposing tender corruption, exemplifies the shortcomings of the current disclosure framework in providing adequate avenues and procedures through which disclosures can be made without fear of retaliation and other forms of reprisal. In response, the Department of Justice and Constitutional Development has prepared the Protected Disclosures Bill, 2026 (“the Bill“) in an attempt to address these shortcomings.

The proposed Bill aims to strengthen protection for whistleblowers, provide adequate procedures through which disclosures can be made, afford employees protection from occupational detriment and other forms of reprisal, provide for the investigation of disclosures, establish a complaints mechanism overseen by a retired judge, and provide amendments to witness protection and legal aid arrangements. In certain circumstances, it permits a court-ordered award to a qualifying discloser in defined circumstances.^[1]

Core procedural requirements and timelines

According to the Bill, an authorised person must, within five days, acknowledge receipt of a disclosure and conduct a preliminary assessment and thereafter decide, within 10 days, whether to investigate or refer the matter to another authorised person. Disclosers must be updated at least every three months. An investigation must be completed within 12 months, subject to a single extension of up to six months granted by a retired judge. Suppression or concealment of evidence by an authorised person constitutes an offence.^[2]

Confidentiality, immunity, and anti-retaliation

The Bill criminalises unauthorised disclosure of a discloser’s identity, permits courts to hear evidence in camera and require redaction of identifying information, and confers civil and criminal immunity where the discloser reasonably believed they were revealing improper conduct. It prohibits occupational detriment for employee disclosers and detrimental action against any discloser or related person, reverses the evidential burden once a protected disclosure and linked detriment are shown, and criminalises retaliation.^[3]

Witness protection, legal assistance & system oversight

The Witness Protection Act applies mutatis mutandis to disclosers and related persons, and courts and tribunals may refer indigent disclosers for legal representation at the state’s expense through Legal Aid South Africa.^[4]

The Director-General must develop and maintain an electronic central database for disclosures and include anonymised disclosure data in the Department’s annual report.^[5]

Incentive Schemes

The Minister of Justice and Constitutional Development, Mmamoloko Kubayi, has stated that the government is cautious about adopting a direct cash rewards system but is open to public proposals. Broader models, including international practices, will be considered during public consultation. As a member of the International Labour Organisation (ILO), it is important for South Africa to consider international labour standards in this respect.

International practices such as qui tam lawsuits could be a suitable model to adopt. Under such lawsuits, private individuals institute legal proceedings on behalf of the state when there is alleged impropriety concerning the submission of false claims to the government.^[6] Qui tam lawsuits under the False Claims Act (“FCA“) in the United States of America allow a party who successfully alleges an impropriety to receive a cash incentive of between 15% and 30% of the proceeds.^[7] In terms of the FCA, when the action is one which the court finds to be based primarily on disclosure of information relating to allegations or transactions in criminal, civil, administrative, or other hearings, the court may award incentives as it considers appropriate, up to 10% of the proceeds.^[8] Any person bringing such an action may additionally receive an amount for any reasonable expenses incurred, including legal fees and costs.^[9] This model is based on the premise that, but for the individual blowing the whistle, the impact and consequential result of the fraud, corruption, or other impropriety would have had more dire consequences had such individual not come forward.

The introduction of awards in the Protected Disclosures Bill relates specifically to convictions of an employer who engaged in prohibited conduct or certain improprieties in the workplace.^[10] In terms of section 18 of the Bill, an individual or individuals may receive up to 25% of the monetary sanctions imposed on the employer if the information disclosed originated from the discloser(s), was not known prior to the disclosure, and proves elements of a criminal or administrative offence which ultimately leads to a conviction.^[11]

Although this is a step forward, the award mechanism is triggered only when an employer is convicted and a monetary sanction is imposed, and eligibility turns on the nature of the discloser and the information rather than on employee status. It excludes individuals who work in the public service, persons in authority in terms of section 34 of PRECCA[12], those who provide information as part of a plea agreement or who were accomplices in the concerned offence, and persons who are law enforcement agents.^[13] These exclusions substantially curtail incentives for many public-sector insiders, including public servants.

The Need for a Specialised Whistleblowing Office

Although the proposed Bill provides avenues on which people can rely to make disclosures, the need for more secure reporting channels is evident in order to enhance the confidentiality and anonymity of bona fide disclosers. The case for a specialised office rests primarily on the advantages of independent system-wide oversight and enforcement. The lack of an independent whistleblowing protective authority or specialist whistleblowing office has been identified by the Active Citizen Movement as a critical gap in the proposed amendments to the disclosure landscape in South Africa.^[14]

Similar to South Africa’s shortcomings concerning the lack of immediate protection and reporting channels available to citizens, the United Kingdom has tabled the Protection for Whistleblowing Bill (Bill 27), which is currently before the House of Lords in Parliament. Bill 27 aims to implement two key changes to the current whistleblowing regulatory framework in the UK: firstly, expanding the protection of whistleblowers beyond workers or persons in an employment relationship; and secondly, providing for a specialised whistleblowers office that deals with complaints and disclosures.^[15]

The proposed “Office of the Whistleblower” would set minimum standards, accredit organisational schemes, provide an independent disclosure and reporting service, issue information and action notices, make redress and interim orders, and impose civil penalties, with appeals to the appropriate tribunal. A comparable institution in South Africa will complement, not replace, the Bill’s framework by enhancing independence, consistency, and enforcement across sectors. A specialised whistleblowers office would broaden the involvement of bona fide disclosers with improved physical and employment protection.

Conclusion

An enhanced disclosure system should result in more disclosures, credible safeguards and possibly reduce the current high levels of corruption. Whistleblowing is an act of constitutional bravery that should be fostered to ensure openness, transparency, and accountability. Time will tell whether the adoption of the Bill’s stronger procedures, protections, oversight, and remedies deliver these aims. The Bill is open for public comment and submissions may be made on its content on or before 14 May 2026.

[1] Section 2 read with Sections 23 and 24 of the Protected Disclosures Bill, 2026.

[2]Section 14(1)-(4), (8)-(11) of the Protected Disclosures Bill, 2026.

[3]Sections 19, 20 and 21(1)-(8) of the Protected Disclosures Bill, 2026.

[4]Sections 22 and 23 of the Protected Disclosures Bill, 2026.

[5]Sections 3(1) and 3(7) of the Protected Disclosures Bill, 2026.

[6] 31 U.S.C. § 3730(b).

[7] 31 U.S.C. § 3730(d).

[8] 31 U.S.C. § 3730(d).

[9] 31 U.S.C. § 3730(d).

[10] Section 18 of the Protected Disclosures Bill, 2026.

[11] Section 18(1) of the Protected Disclosures Bill, 226.

[12] The Prevention and Combating of Corrupt Activities Act 12 of 2004.

[13] Section 18(2) of the Protected Disclosures Bill, 2026.

[14] ACM slams proposed Protected Disclosures Bill 2026 as ‘cold comfort’ for whistle-blowers

[15] Protection for Whistleblowing Bill (HL Bill 27).

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In the decision of African Banking Corporation of Zambia Limited and Others v Mapula Solutions (Pty) Ltd [1], the Supreme Court of Appeal (SCA) was required to determine whether the Gauteng Division of the High Court, Johannesburg, (High Court) erred in concluding that: (a) African Banking Corporation of Zambia Limited (ABC Zambia), African Banking Corporation of Botswana Limited (ABC Botswana), Standard Chartered Bank Limited – Johannesburg Branch (SCB Johannesburg), and Standard Chartered Bank of Botswana (SCB Botswana) (collectively, the Banks) breached the terms of a Debt Rescheduling Agreement (DRA) concluded with Blue Financial Services Limited (Blue) and Mayibuye Group Proprietary Limited (Mayibuye), (b) the Banks’ conduct caused Mayibuye to suffer a loss, (c) the Banks acted in common purpose, and (d) the Banks should be held jointly and severally liable to Mapula Solutions Proprietary Limited (Mapula).

Factual Background

Blue was formerly listed on the Johannesburg Stock Exchange (JSE) and had various subsidiaries which were involved in the business of micro-lending across 12 countries. Blue and its subsidiaries (collectively, the Blue Group) became financially distressed following alleged mismanagement and fraud committed by the CEO of Blue. With the hope of rescuing the company, Blue solicited bids from companies to assist with restoring its profitability. Mayibuye viewed this invitation as an investment opportunity and successfully submitted a bid to assist with the recapitalization of Blue.

As part of the recapitalization, Mayibuye subscribed for shares in Blue by making payment of an amount of R163 million. Mayibuye, Blue and the Banks (which were some of Blue’s creditors) concluded the DRA in terms of which the Banks agreed to receive payment only in respect of interest and Blue’s capital repayments to the Banks were deferred for a period of three years (Rescheduling Period). In terms of the DRA, Blue was required to collect on its loans and, within ten days of the end of the Rescheduling Period, submit a distribution plan to the Banks detailing the amounts it collected and how such amounts were to be divided among the Banks. If the amounts collected were insufficient to pay all of Blue’s outstanding debts, the Banks were afforded two options. The Banks could either convert their debt into equity or grant Blue an additional 24-month period to collect on its loans following which Blue was required to make payment of the collected amounts in full and final settlement of the debts owed to the Banks. If the amount collected after the 24-month period was still insufficient, the Banks were required to write-off Blue’s debt.

The Rescheduling Period was intended to end on 31 December 2013. However, Blue defaulted on interest payments, resulting in the end date of the Rescheduling Period being 6 September 2013. Blue was therefore required to submit its distribution plan within ten business days from 6 September 2013. Blue failed to do so timeously and instead, it submitted a distribution plan on 13 December 2013 which the Banks (through a committee established in terms of the DRA) objected to due to its non-compliance with the DRA.

As a result of Blue’s non-compliance with the DRA, each of the Banks initiated separate legal processes in various jurisdictions against Blue to recover the amounts owed to it by entities within the Blue Group. Mayibuye claimed that the actions taken by the Banks (i.e. to recover the debts owing by entities within the Blue Group) had breached the DRA and as a result, the recapitalization failed. Consequently, Mayibuye claimed that it suffered a loss of R704 968 234 which amount represented the value of its investment in Blue as at 1 November 2013 or R163 million being the amount which it invested in Blue. Mayibuye ceded this claim to Mapula who successfully sued the Banks in the High Court. The Banks appealed the decision of the High Court to the SCA.

SCA Appeal

The SCA found that the Banks did not act with a common purpose and therefore the finding of joint and several liability was unjustified. In arriving at this conclusion, the SCA took note of the fact that each of the Banks took separate steps and engaged different legal representatives to recover the amounts owed to it by Blue. By way of example, ABC Zambia sent a letter to Blue requiring payment of the original loan on 1 November 2013 (the date on which Mapula alleges the loss occurred). No other bank took such a step on that date which means that the loss had already occurred by the time when ABC Botswana, SCB Johannesburg and SCB Botswana were alleged to have breached the DRA. Furthermore, the SCA found that the High Court erred in analysing the Banks joint and several liability in the context of liability for costs and applying that finding to the Banks’ liability for the loss suffered by Mapula without examining each alleged breach and its consequence to apportion liability.

Secondly, the SCA found that Mapula did not prove any breaches of the DRA by the Banks. Blue did not submit a valid distribution plan within ten days of the end of the Rescheduling Period therefore the obligation for the Banks to make an election in terms of the DRA to convert their debt to equity or to be non-capitalizing lenders was not triggered. The SCA held that Blue’s failure to deliver a compliant distribution plan was fatal to Mapula’s case because as the party whose claim is based on the DRA, it is required to prove its compliance with the DRA. Further, Blue’s failure to comply with the provisions of the DRA entitled the Banks to enforce compliance with DRA which includes realising the security enjoyed under the DRA. The SCA held further that the Banks enforcing their rights under the DRA cannot, at the same time, also constitute a breach of the provisions of the DRA.

Lastly, the SCA held that Mapula did not establish any causation between the conduct of the Banks and the loss suffered by Mapula. Mapula alleged that Blue’s shares were devalued as of 1 November 2013. However, only ABC Zambia requested payment on that date. Mapula claimed that Mayibuye’s investment was devalued when it instituted proceedings in 2016 and yet Mayibuye continued with its attempts to recapitalise Blue up until 2018. It was unclear to the SCA how the letter of demand from ABC Zambia could destroy Blue’s value in light of several other factors which include fraud on the part of Blue’s former CEO and Blue’s inability to produce audited financial statements. Furthermore, the letter of demand had no effect on Mayibuye’s efforts to reinstate Blue’s listing on the JSE, nor Blue’s failure to produce audited group financial statements. According to the SCA, the High Court overlooked these factors and attributed Blue’s demise to a letter of demand instead of the various unsuccessful attempts to recapitalise Blue. The SCA held that the High Court’s finding that the Banks’ conduct destroyed Blue’s share price is unsustainable and the High Court should have dismissed the action.

Concluding Remarks

The SCA held that the none of the High Court’s findings were supported by evidence and the High Court’s failure to analyse whether the alleged breaches by the Banks resulted in adverse consequences for the Mayibuye investment on 1 November 2013 undermined the soundness of its judgment. As a result the Banks’ appeal to the SCA succeeded.

[1] (766/2024) [2025] ZASCA 38 (26 March 2026)

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Gone are the days when a missing stamp or a misplaced proof of service could derail a filing. In its place is a system that appears faster, simpler and more efficient –  at least on the face of it.

In this article, we will discuss how the court online system has changed the established rules governing service.

• WHAT THE AMENDMENTS PROVIDE

Uniform Rules 1A and 1B introduce and regulate the e-Justice system in courts where it is operational.

In summary:

• The e-Justice system applies to the issuing of process, service of documents, filing, access to court files, hearings, appeals and reviews.
• Parties who are registered users agree to receive documents electronically via the system.
• Where both the party effecting service and the party being served are registered users, service (other than service by the sheriff for initiating documents or by court order) must be effected through the e-Justice system.
• Subject to limited exceptions, service is deemed to have taken place when the e-Justice system generates a notification.

The Rules also amend the definition of “deliver” to include service and filing through the e-Justice system, making it clear that electronic delivery now stands on equal footing with conventional methods.

• WHAT THIS MEANS IN PRACTICE

The practical effect is that service is no longer tied to physical delivery or email. Once a document is uploaded to Court Online and the system generates a notification, service is complete for procedural purposes. Time periods begin to run from that point.

This removes many of the inefficiencies associated with physical service and reduces disputes about when documents were served. From a litigation strategy perspective, it is likely to save time and narrow the scope for technical objections based on defective service.

• THE RISK: MISSED NOTIFICATIONS

The obvious risk under the new regime is that Court Online notifications are system-generated emails. In practice, these notifications often land in spam folders, particularly in corporate environments. The sheer volume of Court Online email notifications, including those triggered by logins and annexure uploads, creates an excessive volume of messages. This can result in critical notifications, such as document upload confirmations, being overlooked. The Rules make no allowance for these issues. Service is deemed to have occurred when the notification is generated, not when it is seen.

As a result:

• A party may be procedurally served without actual awareness.
• Deadlines may expire before documents are noticed.
• Explanations based on non-receipt are unlikely to carry much weight given the deeming provisions.

• BEST PRACTICE FOR LITIGANTS AND PRACTITIONERS

Given this paradigm shift, legal practitioners should take practical steps to manage their risk:

• Ensure that registered email addresses are monitored daily and not linked to a single individual.
• Avoid relying on personal or director-only email addresses for system notifications. Legal practitioners should consider using a dedicated Court Online email address, shared among relevant team members, to ensure effective and continuous monitoring of notifications.
• Put internal processes in place to check Court Online directly, rather than relying solely on email alerts.
• Ensure clients who are registered users understand that failure to monitor notifications may have immediate procedural consequences.

• CONCLUSION AND NEXT STEPS

The amendments to the Uniform Rules of Court significantly simplify service, but they also move responsibility for monitoring and compliance squarely onto registered users. The result is a greater administrative burden on practitioners to keep up to date with Court Online updates without being explicitly informed.  Court Online is no longer an administrative convenience. It is the primary mechanism by which service is effected and time periods are triggered.

Litigants and practitioners who adapt their systems and practices accordingly are likely to benefit from faster, more predictable litigation. Those who do not may find themselves out of time, with limited recourse.

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The South African Law Commission (as it was known at the time) published a report in August 1998 on class actions and public interest actions entitled “The recognition of class actions and public interest actions in South African Law” Project 88 (1998) (“the 1998 Report”). It was recommended in the 1998 Report that “The principles underlying class actions and public interest actions should be introduced by an Act of Parliament and the necessary procedures by rules of court. The Act and the rules should be introduced as a matter of urgency.”
Although case law to date has greatly assisted with the development and refinement of the certification process of South African class actions, the regulatory framework for the procedure and conduct of class actions is yet to be further developed, especially from a case management perspective, even if guidance could, broadly speaking, be obtained from case law in the absence of any formal legislative framework governing class actions in South Africa.

Latest legislative developments effective from 19 September 2025

On 15 August 2025, 27 years since the publication of the 1998 Report, the Department of Justice and Constitutional Development published in the Government Gazette amendments to the Rules of Court which will, effective from 19 September 2025, introduce a definition for “class action” and a new Rule 11A providing for the “Certification of class actions” (“the certification rules”) .
The majority of the provisions of the certification rules appear to incorporate, with further augmentation, the class action provisions set out in the draft Public Interest and Class Actions Bill, as published in the 1998 Report (“the draft Bill”), which provisions deal with the institution of a class action, certification, the representative in a class action and notice in class actions.
The certification rules set out when an action shall proceed as a class action and provides that an application for certification of an action as a class action shall be made to court on notice of motion supported by an affidavit.

The provisions of Rule 11A(3)(a) that deal with the factors that must be set out in an affidavit in support of an application for certification encapsulate the elements which the Supreme Court of Appeal provided in Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others that should guide a court in making a certification decision.

In terms of Rules 11A(3)(a) and 11A(3)(b), the affidavit must, in addition to setting out any other relevant factor which may have a bearing on the granting or refusal of the application for certification, specifically set out factors which establish that
(i) it is in the interest of justice to certify the action as a class action;
(ii) there is a class identifiable or definable by specified objective criteria;
(iii) there is a cause of action raising a triable issue;
(iv) the right to relief depends upon the determination of issues of fact, or law, or both, common to all members of the class;
(v) whether the relief sought, or damages claimed, flow from the cause of action and are ascertainable and capable of determination;
(vi) where the claim is for damages, whether there is an appropriate procedure for allocating the damages awarded to the members of the class;
(vii) whether, given the composition of the class and the nature of the proposed action, a class action is the most appropriate means of determining the claims of class members; and
(viii) whether the applicant is suitable to be permitted to conduct the action and represent the class. Rule 11A(4) sets out what the affidavit must indicate to support the suitability of the applicant.

The affidavit must also, in terms of Rule 11A(5), stipulate whether the class will be an opt-in or opt-out class or a combination of both and must be accompanied by a draft Particulars of Claim setting out the grounds upon which the plaintiff’s action will be based.

Rules 11A(6) and 11A(7) set out directions which the court, certifying an action as a class action, may give with regards to the nature, form and manner of the notice of the action and that such a court may make any other order which it deems appropriate in the interest of justice.

The following provisions of the draft Bill, and legislative reform as recommended in the 1998 Report, unfortunately remain unregulated: the procedure and conduct in the prosecution of class actions, appointment of a commissioner by the court to collate evidence and make recommendations, determination of damages in a class action, appeals against class action judgments and that settlement, abandonment and discontinuance can only take place upon obtaining prior approval from court. It is unclear if such provisions are still to follow as further amendments to the Rules of Court or what the legislature envisages with these provisions of the draft Bill and recommendations contained in the 1998 Report that are, after close to three decades, yet to be enacted.
The certification rules, once in effect, will assist to provide clarity and legal certainty as to the application process to have an action certified as a class action and is a welcome step towards legislative reform of class actions in South Africa but further legislative reform is still required.

There remains a dire need for clear guidance to be provided as to the procedural mechanics and conduct of class action cases to ensure its timely, proactive, cost-effective, efficient and pragmatic adjudication. Such guidance is in the interest of all parties concerned.

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