- Buhle Waste tried to sidestep PAJA but lost at the Supreme Court of Appeal.
- The High Court wrongly granted relief without proper procedure or record.
- The ruling reinforces that administrative actions must follow constitutional review rules.
The Supreme Court of Appeal (SCA) has overturned a high-profile High Court ruling that invalidated a Gauteng government tender for healthcare waste removal.
At the heart of the case lies a legal misstep: a service provider who tried to sidestep the standard judicial review process and succeeded temporarily, only to be rebuffed at the apex of appellate scrutiny.
The SCA found that the South Gauteng High Court in Johannesburg had overreached when it ruled, on an urgent basis and without a proper hearing, that the RFP and tender process had lapsed. This gave rise to what the court later described as “opportunistic litigation” that risked undermining the integrity of administrative justice in South Africa.
The background: A tender, a timeline, and a dispute
The Department of Health in Gauteng issued a call in July 2022 for service providers to handle the removal of hazardous medical waste, a sensitive and crucial function for public health facilities. The tender attracted 15 bidders, including Buhle Waste (Pty) Ltd, the incumbent at the time. Under standard terms, the bids were to remain valid for 90 days, until 17 November 2022.
However, administrative delays crept in. As the deadline loomed, the department scrambled to request extensions to the bid validity period, the first of which, controversially, was only sent out on 18 November, a day after the original expiry. Buhle Waste agreed to the extension, as did other bidders. Several further extensions followed, all of which Buhle Waste reportedly consented to, until the contract was eventually awarded to Tshenolo Waste (Pty) Ltd and another company in late 2023.
That’s when the dispute began.
From incumbent advantage to legal maneuvering
Still performing the services under the extended contract, Buhle Waste filed an urgent application in October 2023 seeking to interdict the award of the new tender (Part A of the application), pending a fuller review (Part B). But instead of waiting for the comprehensive review process to unfold, as required by the Promotion of Administrative Justice Act (PAJA), Buhle Waste sought a shortcut: a declaratory order that the tender had lapsed because the initial extension wasn’t valid.
The High Court granted this relief, effectively killing the tender award and suspending its consequences for six months. It also set aside any contracts already concluded. In doing so, the court accepted a line of reasoning that Buhle Waste itself had not clearly pleaded and that the other parties, including the new service provider, Tshenolo Waste, had not been given a full opportunity to respond to.
The SCA: You can’t go behind PAJA
But the Supreme Court would have none of it. In a unanimous judgment delivered on 15 July 2025, Judge of Appeal Baartman, writing for the court, held that the High Court erred by deciding substantive issues meant for a proper review process. The ruling reaffirmed that litigants cannot sidestep PAJA by disguising reviews as declaratory relief or interim interdicts.
“The facts of this matter underscore the danger of avoiding the provisions of PAJA,” Judge A Baartman wrote. “It compromised the public interest in the finality of administrative action and trampled on the rights of the other parties affected by the tender award. This was impermissible.”
The court emphasised the value of the Rule 53 record, which would have allowed Tshenolo Waste and others to properly respond. Buhle Waste’s failure to wait for that process, and the High Court’s eagerness to decide the matter on an incomplete record, amounted to a procedural injustice.
In plain terms, the court said: you cannot plead one case and win another.
The outcome: Appeal upheld, High Court ruling reversed
The SCA allowed the appeal, set aside the High Court’s decision, and ordered that Buhle Waste’s application be dismissed, with costs. This means that the Department’s award of the tender to Tshenolo Waste stands, and any challenge to it must now follow the proper channels under PAJA, including an application for condonation for late filing.
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