North West Provincial Department of Agriculture, Conservation, Environmental and Rural Development and Another v Bosigo Investment and Trading CC and Another

The North West Provincial Department of Agriculture issued a tender in 2006 for the construction of stock fencing over a two-year period. Bosigo Investment and Trading CC and Keewave Trading 191 CC were appointed as joint service providers on a rotation and order-based basis, subject to official orders being issued as and when the need arose. Annexure A to the letter of appointment listed potential fencing projects totaling 926.2 km. No orders were issued in the first year, and only four projects were allocated to Bosigo in the second year. The Department later re-advertised tenders and appointed other service providers for fencing work, including work within areas listed in Annexure A. Bosigo sued the Department and the MEC for breach of contract, claiming loss of profits. The High Court found a breach and awarded Bosigo damages for lost profits. The Department appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court’s order was set aside and replaced with an order dismissing Bosigo’s claim with costs. The cross-appeal was dismissed with costs.

The case reaffirms South African principles on contractual damages, particularly that loss of profit must be strictly proved and cannot be assumed from contract prices alone. It clarifies that in order-based public procurement contracts, appointment to a panel does not confer an automatic right to all listed work. The judgment underscores the plaintiff’s onus to prove saved expenses and actual loss in breach of contract claims.