KET Civils CC v The Member of the Executive Committee: Police, Roads & Transport, Free State and Others

KET Civils CC was appointed in February 2019 to a provincial panel of contractors for road maintenance in the Free State. In 2020 the Department informed KET that the Auditor-General had found the panel to be irregularly constituted and sought termination of the contracts. KET consented to termination but disputed subsequent conduct. KET approached the High Court seeking declaratory relief, while the Department brought a counter-application for self-review of the tender process. Both matters were struck from the roll for lack of urgency, but a settlement between the Department and certain contractors was nevertheless made an order of court, resulting in two different ‘merits orders’ dated 29 April 2021. These orders reviewed and set aside the panel appointment and suspended invalidity of the contracts. KET, which had not consented to the settlement, was nonetheless bound by the orders. Its application for leave to appeal was dismissed by the High Court as out of time. KET then sought reconsideration under s 17(2)(f) of the Superior Courts Act after its petition for leave to appeal was dismissed by the SCA.

Leave to appeal was granted. The SCA set aside the High Court’s refusal of leave to appeal and substituted it with an order granting leave. Paragraphs 1–5 of the second merits order were set aside and replaced with an order reviewing and declaring invalid the constitution of the tender panel under s 217 of the Constitution, suspending invalidity of the other contractors’ contracts until completion, and preserving KET’s rights to pursue payment claims. The orders were effective from 29 April 2021. The MEC was ordered to pay costs up to 23 June 2023; thereafter each party bore its own costs.

The case reinforces the principle that courts may not make settlement agreements orders of court where they affect third parties who have not consented. It clarifies the scope of s 17(2)(f) of the Superior Courts Act and underscores judicial duties when granting in rem relief and reviewing procurement decisions. The judgment is important for public procurement litigation and procedural fairness in settlement orders.