Introduction

The Gauteng Division of the High Court of South Africa recently published a notice of proposed amendments (“Proposed Amendments“) to its Mandatory Mediation Protocol (“Mediation Protocol”), which operationalises the Division’s Mandatory Mediation Directive. The proposed amendments are an attempt to reduce the clogging in the Special Interlocutory Court (“SIC“).

The Purpose of the SIC

The SIC was established to address procedural non-compliance by an adversary in litigation. The Division’s practice directive states that “the very purpose of the SIC is to overcome delinquency and consequent improper delays”. It further provides that any litigant who is aggrieved by another litigant’s “neglect, dilatoriness, failure, or refusal to comply” with any provision of the Uniform Rules of Court (“Rules“), practice manual, or the practice directive must approach the SIC to compel compliance from the delinquent party.

Notably, the orders obtainable in the SIC are strictly of an interlocutory nature and therefore do not deal with the substantive (or main) aspects of the litigation. By having a dedicated court of this nature, it was envisaged that there would be a reduction of the time spent on interlocutory issues which would create more capacity for other court rolls to deal with substantive issues.

Unfortunately, despite best intentions, the SIC as an innovation has faced a significant functional problem – excessive congestion. The Proposed Amendments highlight that at any given time there are approximately 16 000 matters seeking allocation and hearing dates in the SIC, which causes congestion, delays and backlogs.

In some ways, this congestion is a self-fulfilling prophecy. Mandatory Mediation, pursuant to the procedures in the Mediation Protocol, was meant to free up the court rolls and foster the expedient and negotiated settlement of cases between parties. Instead, the Mediation Protocol simply moved the traffic from one intersection to another, and the SIC suffers for it. Resultantly, despite the relative availability of court dates, the cases that previously clogged up the court rolls did not disappear, they have now just clogged up the system meant to expediently resolve procedural issues. Accordingly, the proposed amendments are necessitated by the SIC backlog of procedural delinquency cases, owing to parties not fully complying with the Mediation Protocol.

The Mediation Protocol

The introduction of mandatory mediation in Gauteng, accompanied by the Mediation Protocol to operationalise the system, also made peremptory the rules of procedure pertaining to mediation.

From the perspective of the Gauteng Division, mediation was meant to promote alternative dispute resolution and ensure that only those cases which absolutely require judicial intervention come before the judges of the Division. However, alternative dispute resolution processes require the active participation of all parties to a dispute, failing which the peremptory mediation rules are undermined. Accordingly, and as an example, where a party fails to respond to a notice calling for mediation, that constitutes non-compliance and such delinquency may be brought before the SIC for what should ideally be expedient resolution. The Proposed Amendments explain that the SIC congestion is primarily due to litigants’ non-responsiveness to Rule 41A mediation notices. This not only undermines the underlying rationale of the SIC which, in addition to what is stated above, includes the prevention of delay and gamesmanship but also the effective implementation of the Mediation Protocol.

In Malebane v Road Accident Fund [2025] ZAGPPHC 1253, the court remarked that of approximately 200 applications serving before the SIC during that week, a significant number were “Delinquency Applications”. The court further noted that most, if not all, of these applications arose from respondents’ failures to respond to Rule 41A mediation notices. The court expressed growing concern that delinquency applications were increasingly being used as tactical shortcuts to gain access to the Default Judgment Roll. This is an example of the exact gamesmanship the SIC is meant to prevent. The court’s observations are particularly relevant to the proposed amendments. The fact that the majority of matters before the SIC comprise of applications of this nature underscores the need for measures aimed at addressing their increase and lessening the misuse of the delinquency mechanism. The proposed amendments are an attempt to address this issue.

The Proposed Amendments

The solution suggested in the Proposed Amendments is to excise matters where the only issue is a litigant’s failure to reply to a Rule 41A mediation notice. In terms of the Proposed Amendments, mediation delinquency would instead be dealt with through the procedure prescribed in Rule 30A of the Rules which governs non‑compliance with the Rules and Court Orders. This marks a departure from the existing procedure in the Mediation Protocol, which requires an aggrieved party to obtain an order from the SIC compelling the delinquent party to comply with the Mediation Protocol, failing which the aggrieved party may seek that: the delinquent litigant’s claim or defence be struck out, the matter be enrolled on the Default Judgment Roll, and the delinquent litigant be held to be in contempt of the compelling order.

In terms of the proposed solution where a party fails to deliver a response to a Rule 41A mediation notice, the aggrieved party (who delivered such notice) may serve a Rule 30A Notice calling upon the delinquent party to respond within 10 days of delivery of that notice, failing which the aggrieved party may apply to the relevant Registrar for the allocation of the matter on the Default Judgment Roll or the Special Default Judgment Roll if the delinquent party fails to deliver a response after 15 days of expiry of the period called for in the Rule 30A Notice.

Conclusion

While the proposed amendments may result in a reduction of the congestion in the SIC and support the effective implementation of the mandatory mediation regime, they may also just result in another unsuccessful re-direction of judicial traffic; this time from the SIC to the Default Judgment Roll and the Special Default Judgment Roll. It is contemplated in the Proposed Amendments that if the proposed solutions are approved, then transitional provisions to facilitate their pragmatic implementation should be developed and adopted.

It is hoped that the proposed changes have the desired effect and improve the administration of justice in the Gauteng Division. The importance of effective judicial administration cannot be understated, especially given the Gauteng Division’s place as the busiest court in the country.

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Environmental authorisations impose strict obligations which continue throughout the life of a project. In instances where unlawful pollution persists, preparing remedial plans does not discharge those obligations, and regulators cannot remain inactive in the face of non-compliance. In Topigs Norsvin (Pty) Ltd v Eskom Holdings SOC Ltd and Others, the Supreme Court of Appeal (“SCA“) considered whether pollution downstream of the Kusile Power Station (“Kusile“) justified court orders compelling Eskom Holdings SOC Ltd (“Eskom“) and the responsible authorities to comply with their environmental duties.

Factual Background

Topigs Norsvin SA (Pty) Ltd (“Topigs“) operates a swine genetics business on a farm adjacent to the Kusile Power Station in Mpumalanga. Eskom is responsible for Kusile’s construction and operation. Kusile’s activities were subject to environmental authorisations, an approved environmental management programme and water-use licences, which imposed requirements governing pollution prevention, water quality monitoring and the management of contaminated water.

Through its representative on Kusile’s Environmental Monitoring Committee, Topigs repeatedly raised concerns about inadequate monitoring and non-compliance. Reports were delayed or deficient and undertakings to address pollution were repeatedly left unfulfilled. Eskom acknowledged that its operations had adversely affected downstream water resources.

Topigs approached the Gauteng Division of the High Court, Pretoria (“High Court”) for declaratory and mandatory relief, together with a structural interdict requiring continuing judicial supervision and reports every 15 days. The High Court dismissed the application, finding that section 28(12) of the National Environmental Management Act 107 of 1998 (“NEMA“) provided an alternative remedy which Topigs had not pursued, and that its reliance on constitutional rights offended the principle of subsidiarity. Topigs then appealed to the SCA.

SCA Appeal

The SCA rejected the contention that Topigs had improperly bypassed environmental legislation by relying on section 24 of the Constitution. The principle of subsidiarity generally requires a litigant to rely on legislation enacted to give effect to a constitutional right. However, Topigs’ case was substantively founded on NEMA, the National Water Act 36 of 1998 (“NWA”) and breaches of Eskom’s authorisations and licences. Furthermore, section 28(12) of NEMA was not an exclusive remedy. Section 32(1) permits an aggrieved person to seek appropriate relief for breaches or threatened breaches of environmental legislation. The failure expressly to invoke section 28(12) did not defeat proceedings firmly grounded in that statutory framework. The SCA found that Topigs had established a clear right, actual or reasonably apprehended harm, and the absence of another satisfactory remedy.

On the merits, Eskom’s persistent non-compliance and the authorities’ inadequate enforcement established breaches of statutory duties and section 24 of the Constitution. The SCA held that the enforcement powers in section 28(4) of NEMA could not be treated as discretionary in the face of established non-compliance. The responsible officials were required to act.

The SCA furthermore rejected the suggestion that this was merely a dispute between neighbours. The protection of water resources and the lawful exercise of public power raised matters of public interest, with pollution capable of affecting communities beyond the adjoining properties.

However, the SCA distinguished between compelling compliance and assuming ongoing supervision of technical remedial work. Updated action plans and steps taken by the departments after litigation commenced indicated a willingness to address their responsibilities. The structural interdict sought by Topigs was therefore inappropriate in the circumstances.

This did not justify refusing all relief. The SCA upheld the appeal in part and granted declarations of unlawfulness and constitutional breach, together with mandatory orders and reporting obligations. Eskom and its current board were directed to submit a detailed action plan under oath within 30 days of the order, identifying the necessary steps, responsible officials and timeframes. They were required to implement the plan without delay and report under oath within 60 days of the order on compliance, explaining any failures and proposed remedial steps.

The Directors-General of the Department of Water and Sanitation and the Department of Forestry, Fisheries and the Environment were ordered to take steps to ensure compliance. Furthermore, within 75 days of the order, they had to file affidavits confirming that they had considered and determined whether enforcement directives, compliance notices or remedial measures should be issued against Eskom under NEMA and the NWA. Topigs was granted leave to respond to Eskom’s reports and approach the court for further compliance relief.

Topigs did not, however, succeed against every respondent. The SCA upheld the misjoinder of three senior Eskom employees. Section 24N(8) of NEMA, which provides for directors’ liability for environmental harm, did not extend to ordinary employees merely because of their seniority. No relief was granted against the cited Ministers or the National Energy Regulator of South Africa, as the necessary basis for relief against them had not been established. Topigs was ordered to pay the employees’ costs. Eskom was ordered to pay Topigs’ High Court costs and the reasonable costs of investigating and preparing the matter, including its expert’s qualifying fees. The successful portion of the appeal also carried a costs award in Topigs’ favour.

Concluding Remarks

The judgment highlights that environmental compliance requires effective implementation and enforcement of the conditions under which a project is authorised. Operators should ensure that remedial plans are implemented and that monitoring complies with the applicable standards. Furthermore, it is apparent that a court may decline continuing judicial supervision while still granting mandatory orders capable of securing compliance. The appropriateness of a structural interdict must therefore be considered separately from the entitlement to other effective relief.

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The South African chapter of the Brevia BRICS Investment Protection Report 2026 provides an overview of South Africa’s investment protection framework and the legal considerations relevant to foreign investment.

The report brings together jurisdictional contributions on investment protection across the BRICS countries, providing a comparative perspective on the legal frameworks relevant to investors and cross-border investment.

Read the report here.

First published by Brevia.

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Introduction

The civil litigation process demands disclosure: Parties are expected to lay their cards on the table by producing relevant documents and allowing the court to adjudicate on the full evidentiary record. This principle, deeply embedded in the rules of court, sits in tension with an equally fundamental imperative: the protection of personal information.

Since the Protection of Personal Information Act No 4 of 2013 (“POPIA“) became fully operational on 1 July 2021, litigants have been called upon to confront a question their European counterparts have grappled with for over a decade: how does one reconcile the breadth of discovery obligations with the discipline of data protection?

The answer is not that one regime displaces the other: POPIA does not create a blanket bar to civil discovery; nor do the Rules of Court displace data protection. Rather, data privacy law constrains how discovery is conducted, requiring proportionality in every step of personal data processing. This article discusses how litigants can conduct lawful discovery while still ensuring their POPIA obligations are met. It provides practical steps for common discovery pitfalls.

Discovery and POPIA in a Nutshell: the Balance Between Disclosure and Data Protection

Discovery is a process in the High Court and Magistrates’ Court (rules 35 and 23 respectively) requiring parties to disclose relevant documents by sworn affidavit. Parties may request the production of specific documents; and access to discovered documents. Non-compliance can result in the court mandating compliance, adverse costs, or exclusion of undisclosed documents at trial.

POPIA regulates how organisations process personal information. Although courts are exempt in respect of their judicial functions, litigants are not. Discovery invariably involves processing personal information, including by recording, sharing, and storing discovery materials.  POPIA’s conditions for lawful processing therefore apply.

This tension is not unique to South Africa. In Norra Stockholm Bygg AB v Per Nycander AB, [1] the Court of Justice of the European Union (“CJEU“) held that courts must balance civil disclosure obligations with data protection under the GDPR (POPIA’s European equivalent). In Brillen Rottler, [2] the Court held that the right to data protection “is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality“.

Section 39 of the Bill of Rights requires courts to consider international law when interpreting the Bill of Rights, [3] and the Preamble to POPIA requires processing to be “in harmony with international standards.” The EU experience is therefore not merely comparative; it forms part of the interpretive framework South African courts are constitutionally mandated to engage with.

Common Pitfalls and How to Prevent Them

 We turn to discuss common data-related errors we have identified in practice; and how to prevent them.

(1)   Failing to Identify and Document a Lawful Basis

A common error is failing to identify and record the lawful basis relied on for discovery-related processing of personal information. If later challenged, the responsible party may be unable to demonstrate lawful processing.

For purposes of discovery, the most appropriate basis is usually compliance with a legal obligation: in Divine Inspiration Trading 205 (Pty) Ltd v Katherine Gordon, [4] the High Court recognised the rules of court as delegated legislation sufficient to ground lawful processing. For special personal information – such as health, biometric or criminal data – POPIA permits processing where it is necessary “for the establishment, exercise or defence of a right or obligation in law“. In De Jager v Netcare Limited, [5] the court confirmed that surveillance evidence constituting special personal information was lawfully obtained under this provision.

Legitimate interests may serve as an alternative basis but cannot be used for processing  special personal information. Consent is generally ill-suited to discovery given its strict validity requirements and the risk of withdrawal.

(2)   Overbroad Discovery Requests and the Failure to Define a Litigation Purpose

POPIA requires that personal information may only be processed for a specific, explicitly defined and lawful purpose; and that processing is adequate, relevant and not excessive given its purpose. Accordingly, without a defined litigation purpose, a discovery request cannot satisfy this minimality threshold. [6]

A common mistake is requesting “all documents” without adequate limitation. Where a request cannot be linked to a defined purpose, it is vulnerable to objections of excessiveness. Requests should be framed with reference to the facta probanda or essential facts; and the litigation purpose articulated with sufficient precision to satisfy the aforementioned POPIA requirements.

Where personal information originally collected for other purposes is sought for discovery, further processing must be addressed. POPIA provides that further processing is not incompatible where “necessary for the conduct of proceedings in any court or tribunal that have commenced or are reasonably contemplated.” [7] A bare assertion that information is needed “for litigation” will not suffice: data minimisation and purpose limitation must still be applied.

(3)   Collecting Personal Information from Third-Party Sources Without a Valid Exception

POPIA restricts collection from sources other than the data subject. An exception is where collection is “necessary for the conduct of proceedings in any court or tribunal that have commenced or are reasonably contemplated.” [8] A common error is assuming that litigation automatically authorises collection from any source. Litigants should document the basis on which the exception applies and limit collection to what is necessary for the proceedings.

(4)   Neglecting the Duty to Notify Data Subjects

POPIA requires that data subjects be notified of processing. A common pitfall is the failure to account for litigation-related processing in existing or additional privacy notices. This is especially problematic for high-risk processing related to discovery. Although notification exemptions exist, these must be interpreted narrowly.

(5)   Inadequate Security Safeguards and Data Minimisation Measures

POPIA requires responsible parties to safeguard the integrity and confidentiality of personal information. Parties often fail to implement proportionate safeguards regarding discovery information. POPIA’s security requirements should be applied, including  applying anonymisation and pseudonymisation where possible.

(6)   Non-Compliance with Cross-Border Transfer Requirements

Discovery may involve the transfer of personal information outside South Africa; for example, where e-discovery platforms are located abroad. Litigants should assess this at the outset and ensure they have a lawful basis to transfer the personal information in terms of section 72 of POPIA, such as by way of appropriate contractual safeguards.

(7)   Indefinite Retention of Discovery Material

POPIA requires that personal information not be retained longer than necessary. It is a mistake to indefinitely retain discovery material after proceedings conclude. Litigants should establish retention and deletion policies and processes.

Proportionality as an Overarching Discipline

The lesson we should take from the EU is that proportionality should guide the entire discovery process. Disclosure must satisfy procedural obligations whilst safeguards minimise unnecessary intrusion into privacy. POPIA’s Preamble acknowledges the “fine balance” between privacy and the free flow of information. [9] Practitioners should treat proportionality as an overarching discipline informing every decision in the course of discovery.

Conclusion

POPIA compliance during discovery requires measured judgement, documented policies, proportionate safeguards, and a careful balancing of legal obligations with privacy rights.

As POPIA matures and the Information Regulator becomes more active, the consequences of non-compliance will become increasingly significant. Litigants who develop robust frameworks for discovery will be better positioned to process personal information lawfully, comply with the court of court, and avoid regulatory enforcement.

[1] (Case C‑268/21) EU:C:2022:755.

[2] (Case C‑526/24).

[3] Burns and Burger-Smidt (2023) 113, 158.

[4] [2021] JOL 49822 (WCC).

[5] (2025) JDR 0793 (GP).

[6] POPIA sections 10 and 13.

[7] POPIA section 15(3)(c)(iii).

[8] POPIA section 12(2)(d)(iii); Burns and Burger-Smidt (2023) 234.

[9] POPIA preamble.

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Parties all too often, when negotiating agreements, agree to dispute resolution clauses without first understanding the implications of what is being agreed to in the event of a dispute arising. It has become vogue that dispute resolution clauses require that the parties mediate their disputes prior to engaging in arbitration or litigation. Indeed in April 2025 the Gauteng Division of the High Court of South Africa introduced mandatory mediation which requires that parties attempt to resolve their disputes through mediation prior to being able to apply for a trial date. Mediation is an alternative dispute resolution mechanism in terms of which parties, with the assistance of a mediator, attempt to resolve their disputes through negotiation facilitated by a mediator. Unlike a judge or an arbitrator, a mediator does not adjudicate the dispute between the parties and does not have the power to make a determination which is binding on the parties. The mediator’s role is limited to facilitating discussions and negotiations between the parties with the intended result being the parties reaching a settlement. A key feature of mediation is that it is a voluntary process.

In Superway Construction (Pty) Ltd v Cape Metal Windows Servicing CC and Another ^[1] a full bench of the Western Cape Division of the High Court of South Africa (“Appeal Court“) was required to determine whether mediation was a jurisdictional requirement to the adjudication process.

Superway Construction (Pty) Ltd (“Superway“) appointed Cape Metal Windows Servicing CC (“Cape Metal“) as a subcontractor to supply and install aluminium windows, doors and shopfronts. Clause 25.4 of the agreement (“Agreement“) concluded between Superway and Cape Metal provided that in the first instance “Dispute resolution is to be by means of mediation“.

A dispute arose between Superway and Cape Metal regarding alleged outstanding payments in terms of the Agreement. The Association of Arbitrators appointed Mark Wyndam Ilbury (“Adjudicator“) to adjudicate the dispute between Superway and Cape Metal. Superway contended that the Adjudicator did not have the jurisdiction to adjudicate the dispute until such time as Superway and Cape Metal had engaged in a mediation as required by the Agreement. Despite this the Adjudicator directed that the adjudication proceed without further delay. The adjudication proceeded without Superway participating therein. The Adjudicator ultimately delivered his determination in terms of which he upheld Cape Metal’s claims against Superway. Superway refused to comply with the determination. Cape Metal consequently applied to the High Court to enforce the determination. The court of first instance found in favour of Cape Metal and held that Superway was required to comply with the determination. Superway in turn noted an appeal to the Appeal Court.

 In considering the matter the Appeal Court considered the provisions of the draft Mediation Bill which provides, amongst other things, that parties are not compelled to submit to mediation if a court determines that participation is not in the best interests of the parties. The Appeal Court also considered various sections of the Constitution of the Republic of South Africa including section 34 of the Constitution which provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate, another independent and impartial tribunal or forum. Ultimately the Appeal Court decided the matter by considering the wording of the dispute resolution clause in the Agreement.

In short the Appeal Court found that the source of the Adjudicators jurisdiction was the Agreement and that mediation was an “indispensable jurisdictional gateway” that the parties were required to comply with prior to engaging in the adjudication process. The Appeal Court therefore upheld Superway’s appeal against the decision of the court of first instance.

 The key takeaway from the Superway case is that parties when negotiating agreements must understand what they are agreeing to in the event of a dispute arising. All too often parties, as an afterthought, simply insert boilerplate dispute resolution clauses which are not fit for purpose. Whilst mediation is potentially an effective dispute resolution method, it is not always appropriate particularly where there is a lack of good faith between the parties. In such circumstances mediation becomes a time consuming and expensive box ticking exercise. Parties must give careful consideration to the types of disputes that are likely to arise in the context of their agreement and tailor their dispute resolution clauses accordingly. A dispute resolution clause deserves as much attention and consideration as the operative provisions of an agreement.

[1] (Appeal) (A286/2025) [2026] ZAWCHC 407 (13 August 2026) (Superway)

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The South African chapter of GLI: Litigation & Dispute Resolution Laws and Regulations 2026 provides an overview of the country’s litigation and dispute resolution framework, covering key procedural and regulatory developments relevant to businesses and parties involved in disputes.

The chapter examines a range of topics, including civil procedure, evidence and document production, costs and litigation funding, class actions, interim relief, enforcement of judgments and awards, cross-border litigation, international arbitration, mediation and alternative dispute resolution, and regulatory investigations.

Read the chapter online or download the PDF here.

This chapter was first published in GLI: Litigation & Dispute Resolution Laws and Regulations 2026 by Global Legal Group.

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The Western Cape High Court has ordered the eviction of over 160 illegal occupiers from Transnet-owned land at Culemborg in Cape Town by 30 September 2026. Most notably the Court did not require the City of Cape Town to provide emergency housing for those evicted, for a unique combination of reasons, including that the unlawfully occupied land, largely occupied by undocumented foreign nationals, was being used as a base from which opportunistic criminal activity was conducted.

Those travelling into Cape Town city centre from the northern suburbs and western seaboard will know the site well. For over a decade, there has been an informal settlement on Transnet land, immediately adjacent to the highway entering the city centre. After a prolonged period, Transnet brought proceedings to evict the unlawful occupiers. The City of Cape Town municipality was added as a respondent, on the assumption that the municipality, as the relevant local authority, would be required to provide emergency / alternative housing to the unlawful occupants, once they were evicted.

The area in question is infamous for crime. Criminals use the busy highway and area of slow-moving traffic, adjacent to the high security risk area, to their advantage. The Court pointed out that there have been over 100 instances of common robbery, or robbery using a weapon or firearm. There were multiple thefts from and attacks of vehicles, and theft of personal possessions. Over a nine-month period straddling 2024 and 2025, over 100 cyclists were attacked and/or robbed, including, tragically, an elderly cyclist attacked with a bottle, who succumbed to his injuries. When one motorist was forced to stop on the side of the road after having collided with a barrier, criminals pounced, compounding the stricken motorist’s misery, by relieving him of his cellphone.

Dozens of arrests have been effected for a myriad of crimes, including dealing in and possession of drugs, possession of unlicensed firearms, weapons and stolen property, and for criminal conduct including assault (including on a police officer), intimidation and possession of house-breaking implements. In scenes that mimic Hollywood, there are tunnels connecting the properties that make up the area, which are alleged to be used to store drugs and stolen goods.

Security in the area is so bad that when the legal teams and Judge Wille (the presiding Judge) inspected the area, the security team that accompanied the group refused to take them into certain portions, as their safety could not be guaranteed.

Given the sheer breadth of criminal activity, it was perhaps understandable that the unlawful occupants could not put up a substantive contradiction of the allegations of criminality. Instead, much reliance was placed on general denials, and on an expectation that the municipality would be required to give the unlawful occupiers emergency housing, automatically upon their eviction. Judge Wille disagreed. Emergency housing is not for the taking but must instead be determined in accordance with a number of factors and circumstances.

The Court found that an eviction is not inherently unjust or inequitable simply because there is no emergency housing. The unlawful occupiers gave themselves preferential treatment by unlawfully seizing the land, contrary to the rule of law, where such self-help was not sustainable in terms of our Constitution. This, said the Court, deprived Transnet of its Constitutionally protected property rights.

The Court acknowledged that it could not ignore the fact that the unlawful occupation of the land served as a base for criminal activity, a fact that was not seriously refuted by the unlawful occupiers. The Court found that in some cases, the unlawful occupation of the property in question was deliberate and motivated by the desire to exploit its location for the purposes of criminal activity.

Importantly, the Court considered the complex burden placed on the municipality when assessing a multitude of factors to determine if there is any available land for the purposes of emergency housing, and the transparent and lawful management of such property resources, whilst bearing in mind the many people on long waiting lists for affordable property – it would be unfair for the unlawful occupiers to be allowed to jump the housing queue, at the expense of lawful affordable housing requests.

Budgetary constraints and shortages of resources matter: national funding for emergency housing has been severely restricted (only for declared disasters), meaning that the municipality bears the burden of funding emergency housing. The ability to meet previous levels of funding has been significantly constrained.

In what some might find uncomfortable, the Court found that legal status of the unlawful occupiers (i.e. whether they are in the country legally or illegally) is a relevant factor when assessing whether emergency housing is just and equitable. Crucially, the Court found that there is no legal basis to contend that a person who has no entitlement to be in South Africa, is entitled to emergency housing assistance, as this would violate the rule of law. Home Affairs (whose engagement with the legal proceedings was, said the Court, “disappointing and regrettable”) is under a legal duty to intervene when emergency housing is sought by such persons.

Given the ‘departure’ from what many believed were principles that automatically applied to evictions, one gets the sense that the Judgment is likely to be appealed. However, the details of this particular case might make any attempt at an appeal, an uphill task.

The Judgment is bold, and its reasoning may well resonate with the majority of the public, who are likely to view the Judgment as a victory for common sense that is based on reasoned and sustainable legal principles. However, whether or not the Judgment survives subsequent evaluation by an appeals Court, remains to be seen.

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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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