MEC for the Department of Public Works, Eastern Cape and Another v Ikamva Architects CC

The Eastern Cape MECs for Public Works and Health sought to challenge the validity of a consulting architect contract concluded with Ikamva Architects CC in September 2003 for work on the Frere Hospital upgrade. The Department of Public Works later alleged that the procurement process violated s 217 of the Constitution and repudiated the contract in 2007. Ikamva accepted the repudiation, cancelled the contract, and sued the Departments for damages. After repeated failures by the Departments to comply with discovery obligations, their defence was struck out and default judgment for approximately R41 million was granted in favour of Ikamva in December 2015. Numerous attempts by the Departments to rescind or appeal the default judgment failed, including in the Constitutional Court. In 2019, the Departments launched a self-review application seeking to have the procurement decisions and contract declared unconstitutional and void ab initio, and crucially to obtain an order under s 172(1)(b) of the Constitution that Ikamva was entitled to no further payments, including under the default judgment. The High Court dismissed the application, and the Departments sought leave to appeal to the Supreme Court of Appeal.

Condonation for late compliance was granted with costs against the applicants. The application for leave to appeal was dismissed with costs, including the costs of two counsel.

The case affirms the constitutional principle that court orders are binding and enforceable under s 165(5) of the Constitution and cannot be neutralised indirectly through a just and equitable remedy under s 172(1)(b). It clarifies the limits of constitutional remedial powers, particularly in the context of self-review and public procurement, and reinforces finality and certainty in litigation involving organs of state.