The Bloemfontein High Court is this week expected to allocate a hearing date in a matter involving Free State Community Safety, Roads and Transport MEC Jabu Mbalula to explain under oath why he denied work to two construction companies for years despite a court-backed undertaking linked to millions in road maintenance funds.
The development follows an urgent contempt application brought by Kolwana Holdings CC and Khomanani Constructions CC against Mbalula, who is cited as the first respondent in his official capacity, and the department as the second respondent.
In their application, the companies sought an order declaring the MEC and the department in contempt of court for allegedly breaching a January 30, 2025 undertaking that had been made an order of court.
That undertaking was not a casual assurance. It was a formal written commitment by the department, later endorsed by the court, that no work would be allocated to contractors outside of the existing panel of 15 service providers until November 10, 2025, and that the appointed contractors would continue receiving work in terms of their service level agreements, subject to the availability of funds.
The contractors argue that once the department claimed there were no funds available, despite financial reports suggesting otherwise, it effectively undermined the very order it had asked the court to record. They contend that the undertaking created a legitimate expectation that work would flow for the duration of the contract period, unless genuine financial constraints could be demonstrated. The dispute now centres on whether those constraints were real or whether the department’s funding defence collapsed under scrutiny.
“The matter is referred to oral evidence on the following issue: the determination of whether the respondents, in particular the second respondent, did or did not have funds from the period 31 January 2025, being the day after the order was granted, to 10 November 2025, being the date of expiry of the agreement, to comply with the order as alleged,” ruled the court.
Before the ruling, the contractors asked the court to hold the MEC in contempt and even sought possible imprisonment if non-compliance was proven.
According to the judgment, the two companies were among 15 contractors appointed in November 2022 to maintain unpaved roads across the province under 36-month service level agreements running until November 10 last year.
“The applicants allege that the respondents failed to comply with the order in that the respondents have failed to provide the applicants with the work notwithstanding the substantial budget the respondents have for the work,” the court stated.
“As proof thereof, the applicants annexed a copy of the ‘2024 MTEF budget Free State provincial budget speech’ to their founding affidavit.”
The contractors maintain that, despite being formally appointed and completing earlier work instructions, they were later sidelined, while the department insisted there were no funds for further projects.
The contractors argue that the funding explanation does not withstand scrutiny. They further annexed portions of the department’s 2024/2025 annual financial report, stating it reflects R170-million in unspent allocated funds and revenue collections exceeding the target by more than R67-million.
The department disputes this interpretation. Its legal team contends that infrastructure allocations cannot be read narrowly and that funds may have been redirected to other qualified road-related projects, including tarred roads and broader provincial maintenance programmes.
The MEC and the department’s counsel argued that an affidavit could not resolve the matter and requested a referral to oral evidence. Acting Judge P L Nobanda agreed with that submission.
The court said, “I agree with the respondents’ counsel that there are material disputes of fact in the papers that go to the core of the application and which cannot be resolved on the papers as they stand.”
The judge further noted that the financial report relied upon by the contractors required proper contextual interrogation.
“It is correct that ex facie the annual financial report, it appears the second respondent did and does have funds for the project, which is the subject matter of this application,” observed the court. “However, in my view, one cannot read the sections referred to in isolation. The annual financial report must be read as a whole and with an understanding of how accounting principles work.”
While declining to make a contempt finding at this stage, the court cautioned against lightly branding a public office bearer in contempt.
The court said contempt proceedings are about cases where someone intentionally and illegally ignores or does not follow a court order, which can lead to penalties to maintain the court’s authority and ensure compliance with its instructions.
“Accordingly, it seems to me that the only way the court will be able to ascertain the truthfulness or otherwise of the respondents’ defence that there were no funds available to commission work from the 15 service providers, which include the applicants as per the order, is to refer the matter to oral evidence for the determination of that issue,” ruled the court.
