Manong & Associates (Pty) Ltd v The Minister of Public Works

Manong & Associates (Pty) Ltd, a company specializing in civil, structural and development engineering, brought an application to the Equality Court under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The company sought an interim interdict preventing the Minister and Director-General of the Department of Public Works (DPW) from implementing a new Professional Services Supplier Register to replace an existing roster system. The company alleged that the new register would unfairly discriminate against historically disadvantaged firms by abolishing the preferential roster system that had been in place since 2001. The DPW explained that the roster system had to be discarded because it did not comply with the Public Finance Management Act and the Preferential Procurement Policy Framework Act, and did not provide for competitive bidding or preference for disabled persons. The matter was heard by Botha J in the Equality Court, who dismissed the application for interim interdict with costs but granted leave to appeal.

• Whether a company must be represented by legal counsel in the Supreme Court of Appeal, or whether the court has discretion to allow a director to appear on behalf of the company
• Whether the appellant established a prima facie right for the purposes of granting an interim interdict
• Whether the implementation of the new Professional Services Supplier Register constituted unfair discrimination under sections 9 and 217 of the Constitution and section 7(c) and 7(e) of the Equality Act

The appeal was dismissed with costs, including costs consequent upon the employment of two counsel.

The binding principles established are: (1) The general rule remains that a company must be represented by qualified legal practitioners in superior courts (Yates principle), but superior courts have inherent discretion under section 173 of the Constitution to permit non-professional representation in exceptional circumstances where the interests of justice require it, provided leave is properly sought and granted; (2) For an interim interdict to be granted, an applicant must establish a prima facie right based on factual foundations - allegations based on perception, conjecture, supposition or speculation are insufficient; (3) Where a respondent provides a credible explanation that casts serious doubt on an applicant's prima facie case, the application must fail; (4) Changes to public procurement policies made to ensure compliance with mandatory statutory requirements (PFMA, PPPFA) do not constitute unfair discrimination merely because they depart from previous preferential systems.

The court made several non-binding observations: (1) The historical rule preventing companies from appearing except through counsel may have originated in seventeenth-century metaphysical reasoning about corporations having 'no soul', but is justified by practical considerations including ensuring proper conduct of litigation, certainty of authority, and protection against hopeless litigation; (2) The rule may be particularly justified given the increasing complexity of modern litigation; (3) Small companies that are alter egos of their directors present the strongest case for relaxation of the rule, whereas large sophisticated companies with multiple directors and offices in several cities are far removed from circumstances justifying such relaxation; (4) The power to grant leave for non-professional representation should be exercised with caution and sparingly; (5) Individual cases can be left to the good sense of judges without formulating rigid tests; (6) The approach is consistent with section 34 of the Constitution guaranteeing access to courts, which has been described by the Constitutional Court as 'fundamental to a democratic society that cherishes the rule of law' and serving as 'a bulwark against vigilantism'.

This case is significant in South African law for several reasons: (1) It clarifies that superior courts have inherent discretion under section 173 of the Constitution to allow non-professional representation of companies in exceptional circumstances, while maintaining the general Yates rule requiring legal representation; (2) It provides guidance on when such discretion should be exercised, emphasizing that leave must be sought by proper application and that such cases will be rare and exceptional; (3) It demonstrates the strict requirements for establishing a prima facie case for interim interdicts in equality and discrimination matters - mere allegations, perceptions or suppositions are insufficient; (4) It illustrates the court's approach to challenges against changes in public procurement policies, requiring concrete evidence rather than speculation of discriminatory effect; (5) It confirms that public procurement policies must comply with the statutory framework including the PFMA and PPPFA, and that changes made for compliance purposes are not inherently discriminatory.